Because divorce is not about a spouse (man or woman) getting “half of everything”.
Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:
A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.
So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.
On October 26, 2022, the Maryland Court of Special Appeals ruled against a husband who claimed that the infidelity penalty in a postnuptial agreement between him and his wife was void because it lacked consideration, was unconscionable and was the result of undue influence. Eight years after they married, the wife discovered her husband was engaged in an extramarital affair. As part of the process of reconciliation, the wife asked the husband that, among other things, he enter into a postnuptial agreement that husband would pay $5 million if he engaged in “inappropriate and/or immoral conduct” with his former any new paramour (paramour is a more formal term for an illicit lover of a married person). Husband not only was willing to agree the wife’s multimillion dollar penalty idea, he proposed increasing the penalty to $7 million as a showing of his good faith. Against his lawyer’s advice, husband made the agreement with his wife.
The husband subsequently engaged in another extramarital affair, and so the wife filed for divorce and sought to enforce the $7 million infidelity penalty. Husband objected, but the trial court sided with the wife. Husband then appealed that decision, but the appeals court sided with the wife as well. The court of appeals rejected the husband’s claim that the post-nuptial agreement was not substantively unconscionable where the redistribution of the parties’ assets did not “shock the conscience” of the court even though it created a somewhat imbalanced distribution of assets. The seven million dollar penalty provision in the post-nuptial agreement that was triggered if husband engaged in adultery was not against public policy in the absence of fraud, mistake, duress, or undue influence.
And the court of appeals found that the seven million dollar penalty provision in post-nuptial agreement that was triggered if husband engaged in adultery was not unconscionable given the parties’ assets and that husband controlled whether the provision was triggered. The husband says he will challenge the ruling of the Maryland Court of Special Appeals in the higher Maryland Court of Appeals. If you want to read the decision of the Maryland Court of Special Appeals, I’ve included the link to it below.
How do you protect your assets from divorce, government confiscation, lawsuits, garnishments, or seizure?
Best way: own nothing. The government (in all its forms) cannot seize from you that which you do not own.
Downside: when you own nothing, you control nothing. If your wife, for example, owns the car you drive and the house in which you live, there’s no guarantee she and the car and the house will always be around for you.
You may have heard about creating an irrevocable trust or family partnership as a means of protecting your assets from creditors, and depending upon your situation and the laws of the jurisdiction that governs you and your assets, that may be a viable option. To know that, however, you would need to inquire with an attorney who knows and understands the laws of your jurisdiction.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?
If, by this question, you mean that
you are the wife; and
you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,
it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.
However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.
Utah Family Law, LC | divorceutah.com | 801-466-9277
THE UTAH COURT OF APPEALS
YVONNE MARTIN,
Appellant,
v.
PETTER KRISTENSEN AND FRANK O. KRISTENSEN,
Appellees.
Opinion
No. 20160265-CA
Filed July 26, 2019
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 084902378
Karthik Nadesan, Attorney for Appellant
R. Stephen Marshall, Cameron J. Cutler, and Kevin
M. Paulsen, Attorneys for Appellees
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 After lengthy court battles on multiple fronts, Yvonne Martin was awarded $140,285.54 in support payments from her ex-husband, Petter Kristensen, but was ordered to pay Petter’s[1] father, Frank Kristensen, $900,663.26 for unlawful detainer. Yvonne appeals from a number of the trial court’s decisions. We affirm.
BACKGROUND
¶2 This appeal stems from a consolidation of four cases: a divorce case between Yvonne and Petter; an unlawful detainer case by Frank against Yvonne; a quiet title case by Yvonne against Frank and Petter; and a fraudulent transfer case by Yvonne against Frank and Petter. The facts and procedural history relevant to each are given below.
The Marital Property and Divorce Petition
¶3 Yvonne and Petter were married in 1995. Both before and during the marriage, they signed marital agreements (the Marital Agreements) identifying their separate property and detailing how assets would be divided in the event of a divorce. As relevant here, the Marital Agreements provide that Yvonne and Petter did “not intend to share together in the ownership of any property.”
¶4 Yvonne and Petter lived in a house purchased by Yvonne in 1999 (the Property). Frank contributed $58,000 to the purchase price and, in exchange, received an “undivided one-half interest” in the Property from Yvonne. In 2003, Yvonne refinanced the Property, without informing Frank, for approximately $80,000. When Petter learned of the refinance, he was concerned because it increased the mortgage on the Property and eliminated the equity in the home to which he believed Frank was entitled. So in early 2004, Petter proposed a solution: Frank would pay off the now-$260,000 mortgage in exchange for full ownership of the Property, and Yvonne would keep the $80,000 she received from the refinance. Yvonne accepted the proposal and executed a quitclaim deed in favor of Frank, though Yvonne and Petter continued to live in the Property. In 2008, approximately four years later, Yvonne petitioned for divorce.
The Unlawful Detainer and Quiet Title Proceedings
¶5 Around one month after filing for divorce, Yvonne was served with a notice to vacate the Property. After Yvonne failed to do so, Frank sued for unlawful detainer. The complaint requested treble damages “from and including the 7th day of July, 2008, until possession of the rented premises is restored to [Frank].” In response, Yvonne filed a quiet title action against Frank and Petter, contending that “she was improperly coerced into executing [the] quitclaim deed to Frank” and that the deed was therefore void. The unlawful detainer and quiet title actions were then consolidated.[2]
The Temporary Orders
¶6 In April and July 2009, Judge Faust, the trial judge presiding over the divorce proceedings, entered orders stating that Yvonne was “to have temporary use and possession” of the Property. Yvonne had earlier attempted to add Frank as a party in the divorce case, and Frank himself entered a limited appearance in the case to protect his interests in the Property. The domestic relations commissioner assigned to the case, however, recommended that Frank be dismissed as a party. When the court entered its orders granting temporary possession of the Property to Yvonne, Frank was not listed in the caption or served with the orders.
The Unlawful Detainer Trial
¶7 In May 2012, Yvonne was still living in the Property, and the unlawful detainer and quiet title actions proceeded to trial before Judge Shaughnessy.[3] The quiet title portion was tried to a jury, while the unlawful detainer portion was tried to the bench.
¶8 At trial, Yvonne objected to or sought to admit, as relevant here, three types of evidence or argument. First, Yvonne objected to argument and testimony that allegedly conflicted with the terms of the Marital Agreements. For example, in his opening statement, Frank stated that Yvonne was trying to get “something for nothing.” Yvonne moved for a mistrial, asserting that the “opening statements that were given directly contradict what the pre-marital agreement says.” The court denied the motion because “statements made by counsel in openings are not evidence.” Later, during cross-examination of Yvonne, Yvonne’s counsel objected to a line of questioning regarding whether Petter ever paid money into Yvonne’s account so that she could make mortgage payments. Yvonne testified that under the Marital Agreements, “everything [that] comes out of [her] account[] is [her] money and whatever he puts in there is [her] money.” Her counsel objected, arguing that the “whole line of questioning [was] irrelevant” because “the agreement says that what goes into her account is hers.” The court overruled the objection.
¶9 Second, Yvonne objected to alleged hearsay statements concerning conversations between Petter and Frank. Among other statements, Petter testified that he “asked [his] dad for help” in paying off the mortgage on the Property. Yvonne moved to strike this testimony as hearsay, but the court overruled, saying that “the declarant is in Court now talking about a statement that he made.”
¶10 Finally, Yvonne sought to introduce evidence concerning a second deed between Frank and Petter executed a few weeks after Yvonne quitclaimed the Property to Frank. Frank objected, arguing that the deed was an estate-planning mechanism and not a transfer of the Property. The court was concerned about “the risk of confusion to the jury” on “a collateral issue” and sustained the objection.
¶11 Yvonne also objected to a jury instruction requested by Frank and Petter on ratification. That instruction provided,
The power of a party to avoid a quit claim deed for duress is lost if, after the circumstances that made the contract voidable have ceased to exist, she manifests to the other party her intention to affirm it or acts with respect to anything that she has received in a manner inconsistent with disaffirmance.
In ratification cases where undue influence tainted the execution of a . . . contract, it is presumed that the undue influence also tainted the ratification if the causative elements giving rise to the initial undue influence are such that the undue influence was likely to have continued. If the undue influence has once been exerted it will be presumed to follow and taint every transaction between the parties thereafter.
Yvonne objected to the instruction because it did not specify “who bears the burden of proof,” ratification was not “pleaded as an affirmative defense,” and there was “no Utah case law authority for” the instruction. The trial court overruled the objection and agreed to give the instruction.
¶12 After deliberations, the jury returned a verdict for Frank, finding that Yvonne did not “execute the quitclaim deed in favor of Frank Kristensen while under duress.”
¶13 Trial then turned to the unlawful detainer portion of the case. To prove his damages, Frank called an expert witness (First Expert) to testify on the rental value of the Property. Yvonne objected because First Expert was “not timely disclosed” and did not provide a “report or anything to accompany or suggest the foundation for his expertise.” The trial court, however, allowed First Expert to testify. First Expert testified that he compared “rental information” in the area on similar houses to estimate “a fair rental value” of the Property. Based on his comparison, he evaluated the Property’s rental value as $2,200 to $2,400 a month. On cross-examination, Yvonne elicited that First Expert’s evaluation was based only on 2012 rental figures; he did not “do an analysis of rental value as of” 2008 through 2011. Yvonne did not call her own expert witness.
¶14 At the close of trial, and based on the jury’s finding that Yvonne had not executed the quitclaim deed under duress, the court concluded that Frank was the owner of the Property and that Yvonne had been in unlawful detainer since July 2008. The court accepted the “low end of what [First Expert] . . . offered, in terms of the fair market value” and found it to be $2,200 a month, or $72.32 a day. The court then found that Yvonne had been in unlawful detainer for 1,425 days and, after trebling the damages under the unlawful detainer statute, computed damages of $309,168. The court also ordered costs and attorney fees, as allowed under the statute.
The Preliminary Injunction
¶15 After losing at trial, Yvonne sought, and received, a preliminary injunction in the divorce proceedings—now presided over by Judge Kennedy—enjoining Petter, as power of attorney for Frank, from “interfering with [Yvonne’s] right to remain in the [Property].”
The Fraudulent Transfer Proceedings
¶16 While Yvonne continued to live in the Property, she initiated a new lawsuit against Petter and Frank for, among other things, fraudulent transfer. In her complaint, she alleged that Petter owed her money from support orders entered in the divorce proceedings and that, in order to avoid his obligations, Petter “transferred funds and assets belonging to him to other individuals, without receiving any equivalent value in exchange for the transfers.” She then detailed several alleged transfers.
¶17 The case proceeded, and Frank and Petter moved for summary judgment. They argued that in each of the three transfers from Petter to Frank identified by Yvonne, “Frank provided a reasonably equivalent value in exchange.”
¶18 In opposition to their motion, Yvonne argued that there was a factual dispute over “whether Petter received value for the transfers.” She asserted that Frank and Petter had not provided sufficient proof to that effect and that a trial was “necessary to enable the Court to conduct proper credibility determinations.”
¶19 The court concluded, however, that Yvonne bore the burden of proof on her claim and that Frank and Petter only had to “come forward with some evidence” to support their motion. The court then went through each fact in the motion and found that “what remain[ed]” after Yvonne’s objections were “nearly forty paragraphs of largely undisputed facts.” The court agreed with Frank and Petter that there were only three “potentially fraudulent conveyances” concerning Frank and Petter, and it stated that the “undisputed facts show[ed] that there was reasonably equivalent value exchanged.” It therefore granted the motion for summary judgment, concluding that Yvonne “failed to provide evidence to support or sustain her fraudulent conveyance claim[].”
The Consolidated Cases
¶20 In March 2013—before Judge Shaughnessy had ruled on the summary judgment motion on fraudulent transfer—the divorce, unlawful detainer, and fraudulent transfer cases were consolidated. Judge Kennedy now presided over the actions, and Yvonne filed a motion for a new trial in the unlawful detainer portion of the consolidated cases. Yvonne argued that at trial the court “ruled erroneously on evidentiary matters” and “improperly instructed the jury on ratification.” She also argued that the court “incorrectly concluded that Yvonne unlawfully detained [the Property], as she was in lawful possession pursuant to court order.” Finally, she asserted that the court “improperly allowed expert evidence of rental value, as Frank’s expert was not timely disclosed and did not provide an expert report.” The trial court granted the motion in full.
¶21 The consolidated cases, however, were subsequently reassigned to Judge Shaughnessy, who had previously presided over the unlawful detainer trial.[4] Frank and Petter then filed a motion to vacate the order granting Yvonne a new trial, and the court partially granted the motion to vacate. The court upheld its earlier decisions regarding the evidentiary matters and ratification instruction—vacating Judge Kennedy’s order granting Yvonne’s motion for a new trial based on errors related to those matters—but it granted a new trial on the issue of damages. In doing so, the court stated that it wanted “to make sure that . . . there is not an issue on appeal when this case goes up with respect to the disclosure of any expert testimony.” It then ordered Frank and Yvonne, if she so chose to have an expert, to “serve a disclosure (1) identifying [the] expert, (2) providing a copy of the expert’s CV, (3) [providing] a brief summary of [the expert’s] anticipated testimony and (4) [providing] the basis for that testimony.” Yvonne was also given the opportunity to “informally interview” Frank’s expert or “depose the expert.”
¶22 At the new trial on damages, Frank called a new expert (Second Expert) to testify regarding the Property’s fair rental value. Second Expert testified concerning the relevant rental values of the Property from 2008 through 2015, which ranged from $2,100 to $3,200 per month.[5] Those rental figures for the relevant time period amounted to $224,534.10. Because Yvonne did not provide “an alternative basis for determining” the rental value, the court found that Second Expert’s figures were “the most reasonable determinations of fair market rental value.” After trebling the amount of damages to $673,602.30, and adding costs of $5,810.21 and attorney fees of $221,250.75, the court ordered Yvonne to pay Frank a total of $900,663.26.
Attorney Fees
¶23 In March 2016, after nearly eight years of litigation in the above matters, the trial court entered a decree of divorce and determined that Yvonne was entitled to $140,285.54 in support payments under the Marital Agreements.
¶24 Based on that award, Yvonne sought her attorney fees in defending her rights under the Marital Agreements, which contain an attorney fees provision. The court denied Yvonne her attorney fees on three grounds. First, the court concluded that “the terms of the attorneys’ fee provision in the [Marital Agreements] do not obviously apply to the dispute in this case.” It reasoned that “both parties relied on the terms of the [Marital Agreements] to advance their respective positions,” not to “invalidate [a] portion or all of” the agreements. (Cleaned up.) Second, the court concluded that even if the provision applied, Yvonne did not prevail in defending her rights. Although she was awarded $1,000 a month under the Marital Agreements, the court noted that Yvonne sought “substantially” more than that and therefore “lost on [her] claim.” Finally, the court stated that “the issues in the divorce portion of this case were simple and straightforward” and that “Yvonne represented herself at [the divorce] trial.” And though Yvonne was represented by counsel “over collateral issues,” the court stated that “Yvonne and her attorneys made no serious effort to bring to conclusion the few, simple issues that needed to be decided.” So, the court reasoned, “even if Yvonne was entitled to any attorneys’ fees, it would only be for the trial and time spent by attorneys preparing for the issues tried.” The court could not “identify any meaningful time spent by counsel on the issues that ultimately were tried” and therefore concluded that “an award of fees would be inappropriate.”
¶25 Yvonne appeals.
ISSUES AND STANDARDS OF REVIEW
¶26 Yvonne raises six issues on appeal. First, she contends that she cannot be liable for unlawful detainer when temporary orders entered in the divorce proceedings expressly authorized her to remain in possession of the Property during the pendency of those proceedings. This contention presents mixed questions of law and fact. Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 14, 305 P.3d 196. “Matters of statutory construction are questions of law that are reviewed for correctness,” while “questions of fact are reviewed under the clearly erroneous standard, with deference given to the trial court.” Id. (cleaned up). “The trial court’s application of law to the facts is reviewed for abuse of discretion.” Id. (cleaned up).
¶27 Second, Yvonne contends that the trial court erred in granting a new trial on damages in the unlawful detainer action. “It is well settled that, as a general matter, the trial court has broad discretion to grant or deny a motion for a new trial,” including granting a new trial on the issue of damages. Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 25, 82 P.3d 1064 (cleaned up). We will reverse the trial court’s decision “only if there is no reasonable basis for the decision.” Id. (cleaned up).
¶28 Third, Yvonne contends that the trial court erred in instructing the jury on ratification in the unlawful detainer and quiet title proceedings. “Claims of erroneous jury instructions present questions of law that we review for correctness.” Miller v. Utah Dep’t of Transp., 2012 UT 54, ¶ 42, 285 P.3d 1208 (cleaned up). But an error in the jury instructions will result in reversal only if “the error is harmful and prejudicial.” Gorostieta v. Parkinson, 2000 UT 99, ¶ 15, 17 P.3d 1110.
¶29 Fourth, Yvonne contends that the trial court committed cumulative error in the unlawful detainer proceedings by allowing and excluding certain evidence. “We review the trial court’s resolution of the legal questions underlying the admissibility of evidence for correctness and the trial court’s decision to admit or exclude evidence for an abuse of discretion.” Beckman v. Cybertary Franchising LLC, 2018 UT App 47, ¶ 22, 424 P.3d 1016. To apply the cumulative error doctrine, we “must determine that (1) an error occurred, (2) the error, standing alone, has a conceivable potential for harm, and (3) the cumulative effect of all the potentially harmful errors undermines [our] confidence in the outcome.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.
¶30 Fifth, Yvonne contends that the trial court incorrectly granted summary judgment to Frank and Petter on Yvonne’s fraudulent transfer claim. We review the trial court’s “ultimate grant or denial of summary judgment for correctness” and view “the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600 (cleaned up).
¶31 Finally, Yvonne contends that she was entitled to attorney fees in the divorce proceedings under the Marital Agreements. “Whether attorney fees are recoverable in an action is a question of law, which we review for correctness.” Express Recovery Services Inc. v. Olson, 2017 UT App 71, ¶ 5, 397 P.3d 792 (cleaned up). “We review the trial court’s determination as to who was the prevailing party under an abuse of discretion standard.” Id. (cleaned up).
ANALYSIS
Unlawful Detainer
¶32 We first consider whether Yvonne is guilty of unlawful detainer when, approximately ten months after the unlawful detainer action was filed, the court in the divorce proceedings ordered that she could possess the Property while the divorce was pending. We therefore examine how the unlawful detainer statute operates and then address Yvonne’s arguments in light of the statute.
¶33 Under Utah’s unlawful detainer statute, a tenant at will[6] is “guilty of an unlawful detainer if the tenant . . . remains in possession of the premises after the expiration of a notice [to quit the premises] of not less than five calendar days.” Utah Code Ann. § 78B-6-802(1)(b)(ii) (LexisNexis 2008).[7] Once a defendant is found to be in unlawful detainer, the “jury or the court . . . shall also assess the damages resulting to the plaintiff from” the unlawful detainer. Id. § 78B-6-811(2)(b). Subsection (3) of section 78B-6-811 requires that such damages be trebled. Id. § 78B-6-811(3) (“The judgment shall be entered against the defendant for the rent, for three times the amount of the damages assessed under Subsections (2)(a) through (2)(e), and for reasonable attorney fees.”); see also Aris Vision Inst., Inc. v. Wasatch Prop. Mgmt., Inc., 2006 UT 45, ¶ 23, 143 P.3d 278 (“[W]e hold that all damages directly and proximately resulting from [unlawful detainer] are subject to the requirement that they be trebled.”). Damages for unlawful detainer include lost rental value. Forrester v. Cook, 292 P. 206, 214 (Utah 1930), overruled on other grounds as recognized by P.H. Inv. v. Oliver, 818 P.2d 1018, 1020 (Utah 1991).
¶34 As our supreme court has explained, the unlawful detainer statute operates as “a mechanism for quickly and clearly resolving conflicts over lawful possession of property between landowners and tenants.” Osguthorpe v. Wolf Mountain Resorts, LC, 2010 UT 29, ¶ 22, 232 P.3d 999; see also Bichler v. DEI Sys., Inc., 2009 UT 63, ¶ 29, 220 P.3d 1203 (stating that “one of the primary purposes of the unlawful detainer statute is to provide a speedy resolution on the issue of possession”). It does this in part through the “severe remedy” of treble damages, see Osguthorpe, 2010 UT 29, ¶ 23 (cleaned up); see also Utah Code Ann. § 78B-6-811(3), but also through expedited proceedings, see id. § 78B-6-810. These provisions are “evidence of a strong desire by the legislature to create a mechanism pursuant to which owners can be restored to possession of their property.” Osguthorpe, 2010 UT 29, ¶ 23.
¶35 Here, the court found that Frank has been the titled owner of the Property since June 23, 2004. He served Yvonne with a notice to quit the premises on July 1, 2008, giving her five days to vacate. But Yvonne, claiming that she was the owner of the Property, remained in possession until October 2015. That is, she “remain[ed] in possession of the premises after the expiration of a notice [to quit] of not less than five calendar days.” See Utah Code Ann. § 78B-6-802(1)(b)(ii). And because Frank, not Yvonne, was the true owner, Yvonne was “guilty of an unlawful detainer” beginning on July 6, 2008, under the plain terms of the statute. See id. Therefore, Yvonne is liable for damages during the time of her unlawful detainer, including treble damages for Frank’s lost rental value. See id. § 78B-6811(3).
¶36 To resist this conclusion, Yvonne asserts that, “[a]s a matter of law, an occupant of real property cannot be considered to be in unlawful detention of property when she is there pursuant to court order.” And because the court in the divorce proceedings “had entered an order authorizing her to remain in possession of [the Property] during the pendency of [those proceedings],” she contends that she was not detaining property unlawfully. We disagree for three reasons.
¶37 First, we are not persuaded that the divorce court’s orders granting Yvonne temporary possession of the Property transformed her possession from unlawful to lawful. Yvonne did not obtain an order granting her temporary possession until the end of April 2009. Frank sued for unlawful detainer, however, in August 2008 and requested treble damages “from and including the 7th day of July, 2008 until possession of the rented premises is restored.” Thus, the orders on which Yvonne’s arguments depend did not even exist until after she had unlawfully remained on the Property for nearly ten months. But Yvonne does not account for that time or explain how the temporary orders she acquired from the divorce court, which did not purport to adjudicate or alter her unlawful detainer status, both retroactively and prospectively excused her unlawful possession.[8]
¶38 Second, we are unpersuaded that the temporary orders in the divorce case definitively adjudicated Frank’s rights relative to the Property. Yvonne argues that the temporary orders were binding on Frank and that she is therefore excused from paying him damages for unlawful detainer. But the court in the unlawful detainer trial found that Frank was “not a party to the divorce case” and, in fact, “could not be made a party to the divorce case.” The court also noted, without objection, that “everyone agrees” that he was not actually a party.[9] Thus, Yvonne’s possession during the divorce proceedings may have been lawful vis-à-vis her husband, but that does not mean she lawfully possessed as between herself (a tenant) and Frank (the landowner). See Osguthorpe, 2010 UT 29, ¶ 22.
¶39 And even if the temporary orders bound Frank, Yvonne does not explain how that would excuse her from liability for damages for unlawful detainer. Yvonne cites Iota LLC v. Davco Management Co., 2016 UT App 231, 391 P.3d 239, in which the court held that “the orderly and expeditious administration of justice by the courts requires that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.” Id. ¶ 16 (emphasis added) (cleaned up). But this does not answer how an order granting temporary possession of property in one action affects the relief another party may receive in a different proceeding. The court in Iota spoke only in terms of compliance with an order, and here, Petter (and Frank for that matter) complied with the divorce court’s orders granting Yvonne temporary possession of the Property. Therefore, Iota does not help Yvonne.
¶40 Third, as recognized by the trial court, the “unlawful detainer statute itself contemplates that a court may enter an order allowing a person to remain in possession of property, but notwithstanding such an order, the statute still provides for treble damages against that person if that person is ultimately found to be in unlawful detainer.” (Citing Utah Code Ann. §§ 78B-6-810(2)(b)(i), 78B-6-811(3).) In other words, the statute allows for a determination of a right to possess; it does not purport to eliminate damages if the person given temporary occupancy is ultimately deemed to be without rights to the property. Yvonne relies on a concurrence in Bichler v. DEI Systems, Inc., 2009 UT 63, 220 P.3d 1203, to argue otherwise, but Bichler is silent about whether a party given temporary possession can ultimately be held liable for unlawful detainer damages.[10] See id. ¶ 41 (Nehring, J., concurring).
¶41 Yvonne argues that this reading of the statute is unfair. It is not, and the facts of this case illustrate why. As the trial court recognized, the unlawful detainer statute contains a “significant statutory safety valve that is designed to protect against excessive damages.” Specifically, the statute requires that “the court shall expedite the proceedings” and “shall begin the trial within 60 days after the day on which the complaint is served, unless the parties agree otherwise.” Utah Code Ann. § 78B-6-810(1). Yvonne, however, made no attempt to resolve the issue of possession expeditiously. Yvonne was entitled under the statute to a hearing within 60 days of being served with Frank’s complaint, see id., but instead chose to move for three continuances, which pushed the date for trial from December 2010 to May 2012. Even after being found liable for unlawful detainer, Yvonne continued to reside at the Property for another three years, more than doubling the amount of damages. The trial court considered the “procedural history and the machinations of this case” to find an “unreasonable delay in the resolution of this case that takes a relatively manageable amount of damages,” i.e., approximately 60 days of rental value, “to an enormous amount of damages,” i.e., approximately 2,653 days of rental value. We see no error in that conclusion.
¶42 In sum, Yvonne proceeded at her own risk when she gambled a treble damage award on winning her quiet title action and subsequently on vacating the trial court’s decision in the unlawful detainer action. We affirm the trial court’s award of unlawful detainer damages to Frank.
New Trial on Damages
¶43 A trial court may grant a new trial “to any party on any issue” if, among other reasons, there was an “irregularity in the proceedings” or an “error in law.” Utah R. Civ. P. 59(a)(1), (7). Yvonne contends that the trial court abused its discretion when it “permitted [First Expert] to testify” and “compounded this error by sua sponte granting a new trial on damages that permitted Frank to not only disclose a new expert but rectify the deficiencies in his previous expert’s testimony.” We reject this contention.
¶44 For starters, the trial court did not “sua sponte grant[] a new trial on damages.” Yvonne moved for a new trial, including on damages, after being found liable for unlawful detainer, and she requested that the court “hold such further proceedings as are necessary to accomplish substantial justice in this case.” The trial court granted Yvonne’s motion in its entirety, and Frank and Petter later succeeded in narrowing the new trial’s scope to the issue of damages. Thus, the court did not order a new trial on its own motion; it ordered the new trial, and defined its scope, based on the parties’ motions.
¶45 Further, Yvonne’s argument concerning First Expert’s ability to testify at the original trial despite not being disclosed misses the mark. In granting a new trial on damages, the court stated that it was “going to make sure that . . . there is not an issue on appeal when this case goes up with respect to the disclosure of any expert testimony.” It specifically required Frank to disclose his expert and provide a summary of the expert’s opinion. The court also ensured that Yvonne would be given the opportunity to “informally interview” or “depose” Second Expert. Thus, by granting a new trial, the trial court attempted to resolve Yvonne’s objections to First Expert’s testimony in the original trial by giving her the ability to interview Second Expert and the opportunity to call an expert of her own. “It is well settled that . . . the trial court has broad discretion to grant or deny a motion for a new trial,” and we see no abuse of that broad discretion here. See Smith v. Fairfax Realty, Inc., 2003 UT 41, ¶ 25, 82 P.3d 1064 (cleaned up).
III. Ratification Instruction
¶46 A trial court’s ruling on a jury instruction, though reviewed for correctness, “does not constitute reversible error . . . unless the error is harmful and prejudicial.” Gorostieta v. Parkinson, 2000 UT 99, ¶ 15, 17 P.3d 1110. Yvonne contends that the trial court erroneously instructed the jury on ratification in the unlawful detainer trial, but she makes only conclusory statements regarding the alleged error’s harmfulness. For example, she asserts that she “was not given the opportunity to take countermeasures” against the instruction and that she was “substantially prejudiced by the untimely submission of the jury instruction.”
¶47 A court “must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” Utah R. Civ. P. 61. “[A]n error is harmful,” thus requiring reversal, “only if the likelihood of a different outcome is sufficiently high as to undermine our confidence in the verdict.” See Crookston v. Fire Ins. Exch., 817 P.2d 789, 796 (Utah 1991). It is the appellant’s burden to demonstrate that an error affected the outcome. Steffensen v. Smith’s Mgmt. Corp., 820 P.2d 482, 489 (Utah Ct. App. 1991), aff’d, 862 P.2d 1342 (Utah 1993); see also Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 24, 330 P.3d 727. And in determining whether an error is harmful, we consider, in context, “the totality of the evidence and proceedings.” Avalos, 2014 UT App 156, ¶ 24.
¶48 Without addressing the merits of the ratification instruction, we conclude that Yvonne has not shown prejudice from the instruction. She has not demonstrated, in light of the entire evidentiary landscape, how a different instruction would have changed the outcome of the trial. Besides conclusory statements that she was “substantially prejudiced,” she does not describe how the jury instruction affected her theory of the case. She argues that she “was not given the opportunity to take countermeasures” but never explains what those countermeasures would have been or how they would have been successful. She instead asserts that “it cannot be known” whether the jury improperly relied on the ratification instruction. But it is her burden to tip the scale toward a “reasonable likelihood” of a different result, and she has not met that burden. See Steffensen, 820 P.2d at 489 (cleaned up).
Cumulative Error
¶49 We also conclude that Yvonne has not demonstrated cumulative error in relation to the court’s handling of certain evidentiary matters. She argues on appeal, as she did in her motion for a new trial, that the court improperly allowed evidence and argument undermining the Marital Agreements, improperly allowed hearsay testimony from Petter, and erroneously excluded evidence of a second deed between Frank and Petter. These errors, in Yvonne’s view, constitute cumulative error requiring reversal.
¶50 We have recognized that a trial court “has broad discretion to admit or exclude evidence.” Anderson v. Larry H. Miller Commc’ns Corp., 2015 UT App 134, ¶ 30, 351 P.3d 832 (cleaned up). And as noted above, an appellant “must shoulder the burden of demonstrating both error by the district court and prejudice, i.e., that there is a reasonable likelihood that a different result would have been reached absent the error.” Id. (cleaned up). Sometimes, an appellant may show prejudice “when a single error may not constitute grounds for reversal, but many errors, when taken collectively, do.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). But under the cumulative error doctrine, not “all errors accumulate.” Id. ¶ 40. Rather, “the doctrine will not be applied when claims are found on appeal to not constitute error, or the errors are found to be so minor as to result in no harm.” Id. (cleaned up).
¶51 Yvonne has not shown that the trial court’s evidentiary decisions adversely impacted the outcome of the case. She asserts that “while the district court instructed the jury not to consider the fairness of the [Marital Agreements], this instruction was not sufficient to cure the prejudice.” (Citing Loofbourow v. Utah Light & Ry., 94 P. 981, 983 (Utah 1908).) But she does not explain how the testimony and argument she identifies harmed her case or why the jury instruction was insufficient to remedy any harm. See Avalos v. TL Custom, LLC, 2014 UT App 156, ¶ 25, 330 P.3d 727 (“In some instances, jury instructions may cure any error resulting from the improper admission of certain evidence.”). The primary issue at trial was whether Yvonne executed the quitclaim deed under duress; the jury was not tasked with interpreting the Marital Agreements or determining who owned the funds placed in Yvonne’s bank account. Thus, we are not convinced that the alleged error in allowing evidence to undermine the Marital Agreements negatively affected the proceedings.
¶52 As to the other alleged errors, Yvonne does not meaningfully address the trial court’s decision. The court already determined that, even assuming there were errors, there was no prejudice flowing from its evidentiary decisions. In vacating the previous order granting Yvonne a new trial, the court observed that the alleged hearsay testimony was “peripheral and did not have any meaningful effect on the jury’s verdict.” As for the second deed between Frank and Petter, the court found that it was “a collateral issue” and that “the risk of confusion to the jury [was] too great.” By not even challenging those findings, Yvonne has given us no reason to doubt the trial court’s evidentiary decisions. See Utah Physicians for a Healthy Env’t v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49, ¶¶ 18–19, 391 P.3d 148 (discussing an appellant’s burden of persuasion to “actually address the alleged errors” in the lower court’s decision).
¶53 Thus, without individually identifying harm resulting from these alleged errors, Yvonne cannot show that the errors accumulate for purposes of the cumulative error doctrine. See Martinez-Castellanos, 2018 UT 46, ¶ 40. We therefore will not reverse on that basis.
Summary Judgment on Fraudulent Transfer
¶54 Summary judgment is appropriate “if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Utah R. Civ. P. 56(a). To successfully oppose a motion for summary judgment, the nonmovant has the duty “to analyze the evidence” and “show that it create[s] a genuine issue for trial.” Stichting Mayflower Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 42, 424 P.3d 72. A court is not obligated “to look beyond [the nonmovant’s] bald statements to identify supporting evidence buried somewhere in the record.” Id. ¶ 43. The trial court here determined there were only three “potentially fraudulent conveyances” and concluded that the “undisputed facts show[ed] that there was reasonably equivalent value exchanged,” which defeated Yvonne’s fraudulent transfer claim.
¶55 Yvonne contends that “the district court erred in granting summary judgment on [her] fraudulent transfer” claim against Frank and Petter. But Yvonne does not engage with the elements of a fraudulent transfer claim or with the court’s specific determination that there were no fraudulent transfers because the undisputed facts show that reasonably equivalent value was exchanged for the only potentially fraudulent conveyances she identified.
¶56 Rule 24 of the Utah Rules of Appellate Procedure requires a party to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.” Utah R. App. P. 24(a)(8). “An issue is inadequately briefed if the argument merely contains bald citations to authority without development of that authority and reasoned analysis based on that authority.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (cleaned up). The duty to develop an argument belongs to the party; it “may not simply point toward a pile of sand and expect the court to build a castle.” See Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248. There is no “bright-line rule determining when a brief is inadequate,” but “an appellant who fails to adequately brief an issue will almost certainly fail to carry its burden of persuasion on appeal.” Adamson, 2017 UT 2, ¶ 12 (cleaned up).
¶57 Yvonne cites no authority in the portion of her opening brief alleging error in the trial court’s summary judgment decision. She does not engage with her burden under rule 56 of the Utah Rules of Civil Procedure or the elements of a fraudulent transfer claim. She instead insists that “when all reasonable inferences are viewed in the light most favorable to [her],” there is sufficient evidence to create a disputed issue of fact on the merits of her claim. But without explaining the substantive law, Yvonne cannot show that her alleged factual disputes are material. See Utah R. Civ. P. 56(a) (requiring no genuine dispute as to “any material fact” (emphasis added)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“As to materiality, the substantive law will identify which facts are material.”). Thus, Yvonne has not met her burden of persuasion. Adamson, 2017 UT 2, ¶ 12.
Attorney Fees
¶58 Attorney fees are generally recoverable only if authorized by statute or contract. Gregory & Swapp, PLLC v. Kranendonk, 2018 UT 36, ¶ 47, 424 P.3d 897. Yvonne contends that she is entitled to attorney fees under the Marital Agreements and that the trial court erred in not awarding them to her. She does not, however, address all the bases for the trial court’s decision to deny her fees.
¶59 “Our rules of appellate procedure place the burden on the appellant to identify and brief any asserted grounds for reversal of the decision below.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12. Accordingly, “we will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges [less than all] those grounds.” Id. (cleaned up).
¶60 The trial court gave three reasons for its decision denying Yvonne her attorney fees. First, it concluded that “the terms of the attorneys’ fee provision in the [Marital Agreements] do not obviously apply to the dispute in this case.” Second, it concluded that Yvonne was not a prevailing party. Third, it concluded that Yvonne was not entitled to attorney fees because she had represented herself at trial. See Total Restoration, Inc. v. Merritt, 2014 UT App 258, ¶ 16 n.1, 338 P.3d 836 (explaining that pro se litigants are not entitled to attorney fees). Yvonne only briefly addresses the first two reasons; she does not address the third reason until her reply brief.
¶61 Yvonne’s failure to engage with the court’s reasoning until the reply brief is fatal. Kendall, 2017 UT 38, ¶ 13. Both the supreme court and this court “have consistently held that issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered.” Id. (cleaned up); see Blanch v. Farrell, 2018 UT App 172, ¶ 31 n.6, 436 P.3d 285. Because Yvonne did not challenge all the independent bases for the trial court’s decision to deny attorney fees in her opening brief, we will not reverse the trial court on this issue. See Kendall, 2017 UT 38, ¶¶ 12–13.
CONCLUSION
¶62 We conclude that none of the asserted errors Yvonne identifies require reversal. First, nothing in the unlawful detainer statute excuses Yvonne from paying damages to Frank based on the temporary orders issued approximately ten months after she was asked to quit the premises. Second, the trial court did not abuse its discretion in granting a new trial on damages in response to the parties’ briefing. Third, Yvonne has not shown prejudice from the trial court’s decision to give a ratification instruction. Fourth, Yvonne has not shown cumulative error in the trial court’s handling of certain evidentiary matters because none of the individual errors she points to conceivably affected the outcome of the unlawful detainer trial. Fifth, Yvonne has not met her burden of persuasion on her claim that the trial court mistakenly granted summary judgment on her fraudulent transfer claim. Finally, Yvonne has not addressed all the bases for the trial court’s denial of her motion for attorney fees and has accordingly placed that issue beyond appellate review. We therefore affirm.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] Because two of the parties share a surname, we refer to each party by his or her first name, as is our practice in such situations. No disrespect is intended by the apparent informality.
[2] Unless otherwise specified, these combined actions are referred to in this opinion as “unlawful detainer.”
[3] The cases were originally set for trial in December 2010. But after three requests for a continuance, each made by Yvonne, trial was not held until May 2012.
[4] Judge Shaughnessy also ruled on Frank and Petter’s motion for summary judgment in the fraudulent transfer case after it had been consolidated. See supra ¶ 19.
[5] Yvonne ultimately remained in possession of the Property until October 2015.
[6] A tenancy at will is a “tenancy in which the tenant holds possession with the landlord’s consent but without fixed terms (as for duration or rent).” Tenancy at will, Black’s Law Dictionary (10th ed. 2014). “Such a tenancy may be terminated by either
party upon fair notice.” Id.
[7] We apply the version of the code that was in effect at the time the unlawful detainer complaint was filed. The code has since been amended, though the provisions we cite are substantially the same.
[8] In Ute-Cal Land Development v. Intermountain Stock Exchange, 628 P.2d 1278 (Utah 1981), the supreme court held that a writ of attachment, which prohibited the lessee from leaving the premises, did not excuse the lessee from paying treble damages when the writ of attachment was served after the lessor’s notice to quit. Id. at 1282–83. There, the lessee was found guilty of unlawful detainer because the lessee could have vacated “when the notice to quit was first served” but did not. Id. at 1282. Similarly, the court orders here, which Yvonne claims excuse her from paying damages, were entered after Frank’s notice to quit. Though Yvonne was given temporary possession of the Property, she was free to vacate at any time. If the lessee in Ute-Cal was guilty of unlawful detainer, Yvonne must be as well.
[9] Until this appeal, Yvonne did not contend that Frank was a party to the temporary orders. Even in her motion for a new trial, Yvonne asserted that “Frank was added as a party” to the divorce proceedings but “was subsequently removed as a party.” Thus, the argument that Yvonne is not liable for unlawful detainer because Frank was bound by the temporary orders was not preserved for appeal. See Blanch v. Farrell, 2018 UT App 172, ¶ 17, 436 P.3d 285 (“To preserve an issue, the appellant must present it to the district court in such a way that the court has an opportunity to rule on it.” (cleaned up)).
[10] Our reading of the statute is consistent with the use of preliminary injunctions. When a court preliminarily enjoins a party from taking an action, it does not purport to immunize the protected party from paying any damages that may occur if the injunction was wrongfully entered. See Mountain States Tel. & Tel. Co. v. Atkin, Wright & Miles, Chartered, 681 P.2d 1258, 1262 (Utah 1984) (“An injunction is wrongfully issued and recovery on the bond is permissible if it is finally determined that the applicant was not entitled to the injunction.”).
Do you believe a prenuptial agreement and real love between two people are mutually exclusive?
Kind of.
And for the obvious reason implicit in the question: what kind of chance does a marriage have, if the couple has already planned an exit strategy? In that respect and to that extent, a prenuptial agreement and real love between two people are undeniably somewhat mutually exclusive. Success is unattainable without the risk of failure.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Why are prenuptial agreements not required for all marriages prior to getting a marriage license since divorces are about dividing assets and determining child custody/support? Wouldn’t this help make divorces easier and help avoid doomed marriages?
They could be, but if they were, what a shame. And here’s why:
(I addressed this in a previous answer I gave on Quora, which you can see either by clicking here or reading it below)
Of course, even if that is not the intent of wanting a prenuptial agreement.
The reason is clear: because 1) marriage is intended to last a lifetime; and 2) a prenuptial agreement (also called a “premarital agreement”) is an agreement made in anticipation of a possible divorce, a prenuptial agreement inexorably has the effect of planting seeds of doubt about the viability of the marriage. That’s no way to start a lifetime endeavor. A prenuptial agreement is unavoidable evidence (not proof, but evidence) that neither party is truly, fully committed to the marriage.
I am a divorce lawyer who is happily married and who, God willing, will stay married. I believe in marriage. I don’t want to see people divorce unless they must. Which is why I discourage most people from getting prenuptial agreements. I make money when people ask me to prepare a prenuptial agreement. But just because I make money when I prepare prenuptial agreements doesn’t make prenuptial agreements good for the clients.
This does not mean that no one should ever contemplate, let alone sign, a prenuptial agreement. Prenuptial agreements may be warranted or even necessary in certain situations (for example: the super rich, people who are remarrying after a divorce or after the death of a spouse, to name a few).
A big problem with prenuptial agreements is that lawyers push them on people who don’t need them, so that the lawyers can make money preparing unneeded prenuptial agreements.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Andrew G. Deiss, Brent A. Orozco, and Diana F. Bradley, Attorneys for Appellant
Russell Yauney, Attorney for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
HAGEN, Judge:
¶1 Brian Scott Gerwe (Husband) challenges the district court’s order setting aside a postnuptial agreement (the Postnuptial Agreement) Husband entered into with Shannon Olivia Gerwe (Wife) as well as various findings of fact and conclusions of law associated with the court’s divorce decree. We affirm.
BACKGROUND
¶2 In January 2014, Wife petitioned for divorce from Husband. On June 25, 2014, the parties entered into the Postnuptial Agreement, which divided the parties’ assets and set forth their financial obligations. In August 2014, Wife moved the court to set aside the Postnuptial Agreement on grounds that Husband fraudulently induced her to sign it.
¶3 Following an evidentiary hearing, the court granted Wife’s motion. It found that Husband had induced Wife to sign the Postnuptial Agreement in hopes of reconciliation when Husband “had no intent to reconcile with” Wife. This was evidenced by (1) the “shortness of time between the signing of the document and the request to move forward with the divorce,” (2) the “text messages from [Husband] sent to [Wife] almost immediately after the document was signed,” and (3) the fact that the “six factors [Husband] cited to about why he did not want to get back together, were not valid, and were only used as an attempt to justify his actions.”
¶4 After a bench trial, the district court entered findings of fact and conclusions of law in support of the divorce decree. Relevant to this appeal, the court found that: (1) Wife was entitled to half the marital funds in a brokerage account but was not responsible for a loan Husband claimed had been used to fund the account; (2) the total value of personal property remaining in Husband’s possession was $48,000, and half of that value should be awarded to Wife; and (3) based on Husband’s current gross income is $9,373 per month, he was required to pay Wife child support in the amount of $671 per month and alimony in the amount of $1,000 per month.
¶5 Husband now appeals the court’s order to set aside the Postnuptial Agreement as well as various findings of fact and conclusions of law associated with the divorce decree.
ISSUES AND STANDARDS OF REVIEW
¶6 Husband raises four issues on appeal. First, Husband argues that the district court failed to utilize the “clear and convincing” evidentiary standard when it set aside the Postnuptial Agreement and failed to make sufficient findings on the essential elements of fraudulent inducement. Husband acknowledges that he did not raise this issue below and would normally be barred from asserting it on appeal. He asks this court to reach the merits of his argument under the plain error exception to the preservation rule.[1] “The party seeking the benefit of the plain error exception must demonstrate that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome” for the appellant. Meadow Valley Contractors, Inc. v. State Dep’t of Transpo., 2011 UT 35, ¶ 17, 266 P.3d 671 (quotation simplified). To the extent Husband challenges the sufficiency of the evidence supporting a finding of fraudulent inducement, “we will not set aside a [district] court’s factual findings ‘unless clearly erroneous,’ giving ‘due regard to the [district] court’s opportunity to judge the credibility of the witnesses.’” Shuman v. Shuman, 2017 UT App 192, ¶ 3, 406 P.3d 258 (quoting Utah R. Civ. P. 52(a)(4)).
¶7 Second, Husband contends that the district court erred when it awarded each party half the marital funds in the brokerage account but allocated to him the entirety of a loan he claimed was used to fund the account. “In a divorce action, there is no fixed formula upon which to determine a division of debts. However, such allocation must be based upon adequate factual findings which ruling we will not disturb absent an abuse of discretion.” Rehn v. Rehn, 1999 UT App 41, ¶ 19, 974 P.2d 306 (quotation simplified).
¶8 Third, Husband contends that the district court abused its discretion in distributing the value of the parties’ personal property. “[D]istrict courts have considerable discretion concerning property distribution in a divorce . . . [and] we will uphold the decision of the district court . . . unless a clear and prejudicial abuse of discretion is demonstrated.” Dahl v. Dahl, 2015 UT 79, ¶ 119 (quotation simplified).
¶9 Finally, Husband contends that the district court abused its discretion by failing to calculate alimony and child support based on his projected salary. A district court’s award of alimony is reviewed for abuse of discretion. Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 7, 80 P.3d 153.
ANALYSIS
Fraudulent Inducement
¶10 Husband argues that the district court committed plain error when it set aside the Postnuptial Agreement because it failed to use the “clear and convincing” evidentiary standard. Husband also asserts that the court failed to make sufficient findings on the essential elements of fraudulent inducement and that the evidence was insufficient to support such findings.
¶11 To prevail on a claim of fraudulent inducement, the party alleging fraud “must present clear and convincing evidence” of the following:
(1) that a representation was made (2) concerning a presently existing material fact (3) which was false and (4) which the representor either (a) knew to be false or (b) made recklessly, knowing that there was insufficient knowledge upon which to base such a representation, (5) for the purpose of inducing the other party to act upon it and (6) that the other party, acting reasonably and in ignorance of its falsity, (7) did in fact rely upon it (8) and was thereby induced to act (9) to that party’s injury and damage.
Daines v. Vincent, 2008 UT 51, ¶ 38, 190 P.3d 1269 (quotation simplified). “[F]or a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” Greener v. Greener, 212 P.2d 194, 205 (Utah 1949).
¶12 On appeal, Husband has not established that the district court committed plain error in ruling that Wife had proven fraudulent inducement. “The burden of showing error is on the party who seeks to upset the judgment.” State v. Jones, 657 P.2d 1263, 1267 (Utah 1982). Accordingly, “[i]n the absence of record evidence to the contrary, we assume regularity in the proceedings below, and affirm the judgment.” Id.
¶13 Although the district court did not expressly state that Wife presented clear and convincing evidence of fraudulent inducement, it never suggested that a lower standard of proof applied. A reviewing court “will not presume from a silent record that the court applied an incorrect legal standard” but “must presume the regularity and validity of the [district] court’s proceedings, and that it applied the correct legal standard, in the absence of evidence to the contrary.” State v. Cash, 951 N.E.2d 486, 492 (Ohio Ct. App. 2011); see also Granville Med. Center v. Tipton, 586 S.E.2d 791, 795 (N.C. Ct. App. 2003) (rejecting claim that district court applied the wrong legal standard below because “[w]here the record is silent on a particular point, we presume that the trial court acted correctly”); Committee for Responsible Planning v. City of Indian Wells, 257 Cal. Rptr. 635, 638 (Cal. Ct. App. 1989) (“In the absence of any contrary indication in the record, we therefore assume that the trial court followed the correct legal standard in ruling on the motion.”). Because nothing in the record suggests that the court applied something less than the clear and convincing standard,[2] Husband cannot establish error.
¶14 Husband also claims the district court committed plain error because it did not make express factual findings on each of the nine elements of fraudulent inducement. On plain error review, we cannot assume that the court committed any legal error simply because it did not expressly recite each element of fraudulent inducement in announcing its ruling. Nothing in the record would lead us to conclude that the court set aside the Postnuptial Agreement without first finding that Wife established each element of fraudulent inducement by clear and convincing evidence.
¶15 Relatedly, Husband claims that the evidence was insufficient to support such findings. The court’s ruling identified three evidentiary grounds for setting aside the Postnuptial Agreement based on fraud: (1) “[t]he shortness of time between the signing of the document and the request to move forward with the divorce”; (2) the text messages between Husband and Wife, which were sent immediately after the Postnuptial Agreement was signed; and (3) Husband’s testimony “about why he did not want to get back together [with Wife], [was] not valid, and [was] only used as an attempt to justify his actions.”
¶16 “On appeal, we consider the facts in a light most favorable to the district court’s ruling, including its findings.” See Mota v. Mota, 2016 UT App 201, ¶ 2 n.2, 382 P.3d 1080. Viewed in that light, these findings support each element of fraudulent inducement. Specifically, these facts are sufficient to establish that (1) Husband made a representation (2) concerning the material fact that he intended to reconcile (3) which was false and (4) which Husband knew to be false (5) for the purpose of inducing Wife to sign the Postnuptial Agreement and (6) that Wife acted reasonably and in ignorance of its falsity (7) when she did in fact rely upon it (8) and was thereby induced to enter into the Postnuptial Agreement (9) to her injury and damage. See Danies, 2008 UT 51, ¶ 38. Based on the evidence presented, the district court reasonably could have concluded by clear and convincing evidence that Husband induced Wife to agree to the Postnuptial Agreement through fraud. Because Husband has not established plain error, we affirm the district court’s ruling setting aside the Postnuptial Agreement.
Marital Debt
¶17 Husband contends that the district court erred when it allocated to each party half the value of the marital funds in the brokerage account but allocated to him the entire debt from a loan that Husband claims was used to fund that account. It is within the discretion of the district court to allocate and divide debts between the parties as long as such findings are based on adequate facts. See Rehn v. Rehn, 1999 UT App 41, ¶ 19, 974 P.2d 306. “Showing an abuse of discretion is a heavy burden, and we can properly find abuse only if no reasonable person would take the view adopted by the [district] court.” DeAvila v. DeAvila, 2017 UT App 146, ¶ 12, 402 P.3d 184 (quotation simplified).
¶18 At trial, Husband testified that the value of the brokerage account at the time of separation was approximately $506,200, but the record does not appear to contain any account statements or other documentary evidence supporting this assessment. Husband and his mother each testified that Husband’s mother largely funded the account with the intent that Husband would manage the money she invested for her benefit. Because Husband also deposited marital funds into the account, he created a spreadsheet to separately track the deposits and capital gains and losses belonging to his mother. According to Husband’s spreadsheet that was admitted at trial, marital funds accounted for only twenty-two percent of the brokerage account, or $128,600 after taxes. He further testified that, with Wife’s consent, he used $40,000 to purchase some personal property, leaving a balance of $88,600.
¶19 Husband argued that Wife’s $44,300 share of the brokerage account should be reduced by $22,820.05, half of a $45,641 loan that Husband owed to Uniformed Services. At trial, Husband testified that he used the Uniformed Services loan to pay off a prior $50,000 loan that he had taken out in June or July 2013. According to Husband, the proceeds of the prior loan were deposited into the brokerage account and his spreadsheet reflects a $50,000 deposit at that time. But the parties have not cited—and our own exhaustive review of the record has not found—any documentary evidence establishing the existence or balance of either loan or how the proceeds of those loans were used. There are no loan documents, account statements, or receipts showing either that the proceeds of the prior loan were deposited into the brokerage account or that the Uniformed Services loan was used to pay off the prior loan.
¶20 The district court noted that it “didn’t have a whole lot of great evidence” regarding the value of the brokerage account. Recognizing that it could not do more with the scarce evidence before it, the court found that the value of the marital property in the brokerage account was limited to $88,600, the amount Husband had agreed belonged to the marital estate. The court also rejected Husband’s claim that his $45,641 Uniformed Services loan constituted marital debt and ruled that Wife was not obligated to pay the $22,820.05 that Husband requested.
¶21 On this record, Husband cannot establish that the district court abused its discretion in finding that the Uniformed Services loan was not marital debt. Other than his own testimony and an entry in the spreadsheet that he created, Husband offered no evidence to prove either the existence of the loan or that the loan proceeds had been used to fund the brokerage account. See, e.g., Ouk v. Ouk, 2015 UT App 104, ¶ 13, 348 P.3d 751 (affirming finding that “Husband did not meet his burden at trial to provide any evidence or documentation proving that all of the proceeds from the line of credit went into” his business); Godfrey v. Godfrey, 854 P.2d 585, 587–88 (Utah Ct. App. 1993) (vacating a finding of marital debt where husband failed to produce “any documentation supporting the existence of a lien,” such as “loan papers, mortgage or trust deeds, cancelled checks, etc.”). In ruling that the Uniformed Services loan was “his debt, not hers,” the court implicitly found that Husband had failed to carry his burden to prove that the loan was a marital debt. Given the lack of documentation regarding the loan or the use of its proceeds, the district court acted within its discretion by refusing to reduce Wife’s share of the brokerage account by half of the loan’s balance.[3]
III. Personal Property
¶22 Husband contends that the district court abused its discretion in valuing the parties’ personal property at $48,000 and awarding Wife one half of that amount. A district court has considerable discretion to distribute property in a divorce proceeding, and such distributions are presumed valid. Dahl v. Dahl, 2015 UT 79, ¶ 119. We therefore will uphold the district court’s decision on appeal “unless a clear and prejudicial abuse of discretion is demonstrated.” Id. (quotation simplified). In reviewing the district court’s decisions, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court’s superior position from which to judge the credibility of witnesses.” Id. ¶ 121.
¶23 The district court reviewed significant evidence on the value of the parties’ shared personal property. At trial, Wife asked for specific personal property to be returned to her. She also submitted a list of shared personal property that would remain with Husband. Wife produced receipts for each of the items on the list, argued that the total value of that shared personal property was approximately $66,000, and asked for half that amount. Husband never claimed that Wife had possession of any of those items, but argued that Wife’s valuation was inflated because it was based on the purchase price of the items and failed to reflect their depreciation in value. Based on the evidence presented, the district court estimated the value of the shared personal property at $48,000. Because the property remained in Husband’s possession, the district court ruled that Wife was entitled to half of its value, which amounted to $24,000.
¶24 On appeal, Husband claims the district court abused its discretion by awarding Wife half the value of the shared personal property without taking into account the portion of that property already in Wife’s possession. Husband argues that “[t]he only way the [district] court’s ruling could have been correct is if [Husband] kept all the personal property thereby obligating him to pay [Wife] her half of the total value.” But that is precisely what happened. Contrary to Husband’s claim, the court did not determine “the value of all marital property, including that retained by [Wife], to be $48,000.” Instead, $48,000 represented the value of only those items listed that Wife agreed would remain in Husband’s possession.
¶25 Husband points to evidence that Wife kept a vehicle worth $13,000, suggesting that her share of the personal property should have been offset by that amount. But both parties had purchased vehicles during the marriage and neither vehicle was included in the list of shared personal property that Wife submitted. Wife submitted evidence that the value of her vehicle was between $10,782 and $13,140. Husband testified that he sold his vehicle that had been purchased during the marriage for $9,000, although Wife testified that the fair market value of his vehicle was $21,000. Given the evidence that each party kept his or her own vehicle and that the value of each vehicle was at least arguably similar, it was reasonable for the court to exclude the value of both vehicles in calculating the amount of shared personal property.
¶26 Husband has not demonstrated that the district court exceeded its discretion in valuing the shared personal property, excluding the parties’ vehicles, at $48,000. Accordingly, we affirm the district court’s award of $24,000 as Wife’s share of the value of the remaining personal property retained by Husband.
Child Support and Alimony
¶27 Husband contends that the district court abused its discretion by calculating alimony and child support based on his monthly income at the time of trial rather than on the lower salary expected to result from an imminent job change. At trial, Husband testified that $9,373 was “an accurate reflection of [his monthly] income.” However, he explained that he had planned to separate from his military service and had accepted a job offer with a commercial airline where his monthly salary would start at $1,824. We conclude that the court did not abuse its discretion in basing the child support and alimony awards on Husband’s income at the time of trial rather than on his claimed anticipated future income.
¶28 With respect to child support, the district court properly based its award on Husband’s verified income. Utah law establishes presumptive guidelines for the award of child support based on the parents’ adjusted gross income. See Utah Code Ann. §§ 78B-12-202, -301 (LexisNexis 2012). “Each parent shall provide verification of current income,” including “year-to-date pay stubs or employer statements and complete copies of tax returns,” unless the court finds that such verification is not reasonably available. Id. § 78B-12-203(5)(b) (LexisNexis 2012). Because Husband had not yet changed jobs, he had no pay stubs or other documentation to verify his reduced income. Nor did he produce an offer letter from his new employer, confirming that he had been hired and setting forth his anticipated salary. Moreover, whether the anticipated salary change would come to pass was speculative until he actually separated from the military and began his new employment. Based on the lack of verification and the uncertainty regarding Husband’s future employment, the district court acted well within its discretion in basing the award of child support on Husband’s income at the time of trial.
¶29 Husband also argues that the district court abused its discretion when it failed to take his imminent job change into account when awarding alimony. Unlike child support, which is presumptively calculated based on income, the district court must consider multiple factors in determining alimony. These factors include “the ability of the payor spouse to provide support” as well as “the financial condition and needs of the recipient spouse” and “the recipient’s earning capacity or ability to produce income.” Id. § 30-3-5(8)(a) (Supp. 2017) (laying out the statutory factors for an alimony determination).
¶30 Here, the court considered the statutory factors and found that Wife “has a need for alimony.” Although Wife has a college degree and was making approximately $12 per hour at the time of trial, she was not employed full-time. The court imputed her earning capacity at minimum wage, or $1,257 per month because “she has been out of the job market for a long time.” The court found that, given her monthly costs, Wife “needs more money than the child support and minimum wage provide.” Given Husband’s admitted income of $9,373 per month, the court explained that “there is no question that [Husband] makes more money than [Wife].” Ultimately, the court awarded $1,000 per month in alimony based on both Wife’s need and Husband’s current ability to pay.
¶31 The district court did not abuse its discretion in considering Husband’s current earnings to determine his ability to provide support. In basing the alimony award on Husband’s income at the time of trial, the court appears to have made an implicit credibility determination regarding Husband’s claim concerning his ability to provide support. At a post-trial hearing regarding the findings of fact in the divorce decree, the court noted that Husband came “into trial making a huge amount of money as a Colonel in the Air Force, and then all of a sudden is making no money because, you know, now it’s time to pay somebody.” “It is the province of the trier of fact to assess the credibility of witnesses, and we will not second guess the trial court where there is a reasonable basis to support its findings.” Reed v. Reed, 806 P.2d 1182, 1184 (Utah 1991). It was within the court’s discretion to discredit Husband’s claim that he was unable—as opposed to merely unwilling—to provide the support ordered by the court.
¶32 In addition, the district court acted within its discretion in assessing Husband’s ability to provide support based on his military pay where the anticipated decrease in salary was not only speculative but also temporary. Indeed, “where the husband has experienced a temporary decrease in income, his historical earnings must be taken into account in determining the amount of alimony to be paid.” Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (quotation simplified). Husband testified that his initial salary in his new job would be significantly lower than his current income. However, he acknowledged that his salary would increase dramatically after the first year, from $24 per hour to nearly $40 per hour. Husband also testified that the job did not involve a 40-hour workweek, and that he was guaranteed either 65 or 72 hours per week. Based on this information, it appears that Husband’s monthly income would at least approximate his military pay within one year. Because the anticipated decrease was temporary, the district court properly looked to historical earnings to determine Husband’s ability to provide support. See id.
¶33 Finally, Husband claims that the district court abused its discretion because it was required to consider the imminent decrease in his salary under the governing statute. Utah law provides that “[w]hen a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered . . . in determining the amount of alimony.” Utah Code Ann. § 30-3-5(8)(g) (LexisNexis 2013). Husband does not explain, however, how his anticipated change in income is the result of the parties’ collective efforts. Rather, the change in income appears “unrelated to the efforts put forward by the spouses during marriage.” Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991). Typically, this statutory provision deals with an enhancement in a spouse’s earning capacity that stems from the collective efforts of both spouses, such as where one spouse has provided financial funding, care for the couple’s children, or other support while the other spouse attends school or engages in professional development. See, e.g., Ashby v. Ashby, 2010 UT 7, ¶ 26, 227 P.3d 246 (under the governing statute, “one spouse’s support of their student spouse’s educational efforts is properly considered as a factor in making the alimony determination”). Husband has cited no authority suggesting that this provision applies to a temporary change in income based on a voluntary decision of the payor spouse to seek less lucrative employment. Accordingly, we hold that the court did not exceed its discretion in declining to adjust the alimony award based on Husband’s anticipated change in income.
CONCLUSION
¶34 The district court did not commit plain error in setting aside the Postnuptial Agreement based on fraudulent inducement, nor did it exceed its discretion in allocating marital property and awarding child support and alimony. Accordingly, the district court’s judgment is affirmed.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] As this court has previously observed, “[o]ur supreme court recently noted the ‘ongoing debate about the propriety of civil plain error review,’ but did not take the opportunity to resolve that debate for purposes of Utah law.” Frugal Flamingo Quick Stop v. Farm Bureau Mutual Ins. Co., 2018 UT App 41, ¶ 10 n.3 (quoting Utah Stream Access Coal. v. Orange St. Dev., 2017 UT 82, ¶ 14 n.2). We decline to resolve this issue here because the appellee has not challenged the applicability of plain error review.
[2] 2. As evidence that the district court did not apply the clear and convincing evidence standard, Husband points to the judge’s statement that, if the Postnuptial Agreement was not set aside, the parties would “be doing a petition to modify anyway, and I think we ought to just get it done.” The court’s observation that its ruling might ultimately streamline the resolution of this case does not suggest that it applied the wrong evidentiary standard in making that ruling.
[3] 3. In addressing the marital debt issue in his opening brief, Husband inserted a single paragraph claiming that the district court “took a similarly inequitable tack in apportioning the IRAs.” Although it is not identified as a separate issue on appeal, Husband argues that Wife’s share of the IRAs should have been reduced because she dissipated marital assets by mismanaging her own IRA account after the parties separated. To the extent Husband intended to raise dissipation of marital assets as a separate issue on appeal, Husband’s “overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.” Sandusky v. Sandusky, 2018 UT App 34, ¶ 17 (quotation simplified). In particular, Husband does not analyze or offer any support for the proposition that unprofitable investing decisions constitute dissipation of marital assets, nor does he explain how the district court exceeded its broad discretion by declining to deviate from the general rule that a marital estate is valued at the time of the divorce decree. See Rayner v. Rayner, 2013 UT App 269, ¶¶ 19–21, 316 P.3d 455 (explaining the general rule that marital estate is valued at the time of decree or trial, the district court’s broad discretion in deciding whether to deviate from this rule, and the factors relevant to whether a party has dissipated marital assets). Because this issue is inadequately briefed, we decline to address it further.
Utah Family Law, LC | divorceutah.com | 801-466-9277