That is an interesting question. Before I answer it, know this: anyone who is motivated to marry on a “what’s in it for me?” basis and who stays married motivated by a “what’s in it for me?” basis is likely to be unhappy in his/her marriage and likely will end up divorced. Marriage success and happiness depends upon the couple’s mutual devotion to each other, to the family they make together, and placing the interests of their marriage and family ahead of their own, individual self-interest.
Here is what I believe would happen if there were no more alimony or splitting of assets in divorce proceedings when a married couple has no children:
the desire for certain women to marry would plummet. Why? It’s politically incorrect to state the following, but it is no less true: many women (not all) marry so that their husbands (and now, in the case of lesbian couples, their wives) will provide for them (and only for them, not for children the couple may have) financially. If this kind of woman (i.e., a woman who relied on her spouse financially) knew that she would get no alimony upon divorce and wouldn’t get half of the funds the spouse saved and half of the retirement funds the spouse accrued during the marriage, there is a certain kind of woman who would not marry.
Do not misunderstand me: a woman (or man) who foregoes pursuing a career so that the couple can have children and rear a family together in the best possible conditions, with one parent staying home to care for the children instead of working outside the home, is a spouse who, if she/he has lived up to that commitment, deserves alimony if the marriage ends in divorce. The traditional family, i.e., where the children have a stay at home parent, is the optimal way to rear children who will be themselves physically and mental healthy, decent, productive adults. Some families cannot afford to have a parent stay at home. There is no shame in that. But when both spouses work even though they both don’t need to work, and where such spouses have children and warehouse those kids in daycare, they are doing themselves and their children a disservice that cannot be compensated for.
the desire for a percentage of heterosexual men to marry would increase. Many such men have seen their fellow male friends and family members financially ruined by alimony and by losing so much of what they worked so hard for in divorce. This causes many men to fear and avoid marriage to a woman out of concern that divorce will ruin them. Many husbands of childless couples who knew that their wives would not profit from divorce would not fear divorce nearly as much as they do now.
Do not misunderstand me: there are many men who are devoted to their wives and children. Their wives and family are a labor of love for whom them willingly and gladly sacrifice their time, effort, and income. There are many decent men, however, whose wives are not themselves decent people who are equally devoted to their husbands and families. Men who marry gold diggers are justifiably upset when the gold diggers try to profit from divorce.
Now if, after you read this answer in its entirety, you conclude that “marriage is for suckers,” you have missed the point completely.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If I have to give my spouse half of my retirement after a divorce, should I still go forward or just ride it out?
Great question, but not for the reasons you may think.
Remember this first: just because you do not file for divorce does not mean you will prevent a divorce from occurring; your spouse can file for divorce and obtain a divorce whether you “agree” to it or not. This is what “no-fault divorce” is.
“No-fault divorce” does not mean that “you can’t divorce if I’ve committed no fault.” No. What no-fault divorce really means is that one who files for divorce is not required to find fault or ascribe fault to his/her spouse as grounds for divorce.
Otherwise stated, even if your spouse is perfect in every way and done nothing wrong, you can file for divorce against your spouse anyway; no fault need be ascribed to your spouse to get a divorce from your spouse.
So, as you can see: if you think that “I’ll hang on to all of my retirement funds/benefits, as long as I don’t file for divorce,” that is not true. You can’t just “ride it out” and keep control of all of your retirement funds/benefits. The reason why is that your spouse could file for divorce against your will and seek (almost surely get), in the absence of exceptional circumstances, half of all retirement funds/benefits acquired or accrued during the marriage.
Utah Family Law, LC | divorceutah.com | 801-466-9277
PEGGY PETRZELKA, Appellee,
v.
JAMES E. GOODWIN, Appellant.
Opinion
No. 20180923-CA
Filed March 5, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 164100050
Ashley E. Bown, Attorney for Appellant
Tess A. Davis, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Peggy Petrzelka and James E. Goodwin married in September 2004, separated in February 2015, and divorced in February 2018. Following a bench trial, the court entered judgment on several issues, including alimony and the division of the parties’ retirement accounts. The court declined to award Goodwin alimony, finding that he was capable of meeting his own needs. The court also determined that the marital portion of Petrzelka’s retirement account would be valued as of March 1, 2015—the approximate date of the parties’ separation. Goodwin challenges both determinations, asserting that the court erred by declining to award him alimony and by declining to value Petrzelka’s account as of the time of the divorce decree or trial. We affirm.
BACKGROUND
¶2 Petrzelka and Goodwin married in September 2004. At the time, Petrzelka was forty-two years old, while Goodwin was sixty-one. During the marriage, the parties lived in a home that Petrzelka had purchased before their union. Both parties also worked. Petrzelka continued in her established teaching career, and Goodwin held jobs related to rural community development and land conservancy. While married, the parties kept their finances separate. They shared in some “very limited” joint expenses, but otherwise maintained separate bank and credit card accounts and spent their respective incomes how they wished.
¶3 Goodwin retired in 2012, and the parties separated in February 2015. After their separation, Goodwin moved to California, while Petrzelka remained in Utah. At the conclusion of a two-day trial in February 2018, the parties were granted a divorce.
¶4 Following the trial, the court entered judgment on several issues, including Goodwin’s claim for alimony and the division of the parties’ retirement accounts. Based on its assessment of Goodwin’s needs and his ability to meet them, the court declined to award alimony. It determined that Goodwin was able to meet his needs through a combination of his Social Security and retirement income, and income the court imputed to him at $15 per hour for twenty hours per week.
¶5 The court also determined that a portion of one of Petrzelka’s retirement accounts would be subject to division as marital property. Rather than setting the end date of the valuation period as the date of trial or the divorce decree as Goodwin requested, the court set the valuation period as September 4, 2004—the date of the parties’ marriage—to March 1, 2015—the month immediately following the parties’ separation.
ISSUES AND STANDARDS OF REVIEW
¶6 On appeal, Goodwin challenges the trial court’s decision not to award alimony. In general, trial courts in divorce actions are “permitted considerable discretion in adjusting the financial and property interests of the parties.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (cleaned up). “Accordingly, we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). “Because we can properly find abuse only if no reasonable person would take the view adopted by the trial court, appellants have a heavy burden to show that an alleged error falls into any of these three categories.” Id. (cleaned up).
¶7 Goodwin also challenges the trial court’s division of Petrzelka’s retirement account, arguing that the court erred in setting the end date of the valuation period as March 1, 2015, shortly after the parties’ separation, rather than the date of trial or the divorce decree. “Generally, the marital estate is valued at the time of the divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478 (cleaned up). However, as with alimony, the court has broad discretion to use a different date so long as its decision it supported by “sufficiently detailed findings of fact explaining its deviation from the general rule.” Id. (cleaned up); see also Rayner, 2013 UT App 269, ¶ 19 (“A trial court has broad discretion to deviate from [the] general rule when circumstances warrant.” (cleaned up)).
ANALYSIS
I. Denial of Alimony
¶8 Goodwin argues that the trial court exceeded its discretion by declining to award alimony. Alimony awards are generally aimed at “enabling the receiving spouse to maintain, as nearly as possible, the standard of living enjoyed during the marriage, and preventing the receiving spouse from becoming a public charge.” Anderson v. Anderson, 2018 UT App 19, ¶ 29, 414 P.3d 1069 (cleaned up); Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153.
¶9 To that end, in deciding whether to award alimony, a court must consider several factors relevant to alimony’s purposes, including the “financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)–(iii) (LexisNexis 2019); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (same); Barrani v. Barrani, 2014 UT App 204, ¶ 21, 334 P.3d 994 (same). In assessing the parties’ needs and their respective abilities to fulfill those needs, courts should generally look to the marital standard of living. See Rule, 2017 UT App 137, ¶ 15; see also Utah Code Ann. § 30-3-5(8)(e) (instructing courts to, as a general rule, “look to the standard of living, existing at the time of separation,” in setting alimony awards). If a court determines that the spouse requesting alimony is able to meet his or her own needs, the court “should not award alimony.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591.
¶10 Further, courts in divorce cases may consider imputing income to an unemployed spouse in assessing the spouse’s ability to produce income. See Gardner v. Gardner, 2019 UT 61, ¶ 98, 452 P.3d 1134; Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223; see also Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis 2018) (setting out the considerations for imputing income to a parent for child support).[1] All else being equal, a spouse who is capable of working ought to be “accountable for meeting [his or] her own needs to the extent” of that capability. Hansen v. Hansen, 2014 UT App 96, ¶ 9, 325 P.3d 864 (explaining that imputing income to a spouse “holds [that spouse] accountable for meeting her own needs to the extent she is capable”).
A. The Court’s Alimony Findings
¶11 Here, the court determined that, in light of the facts, circumstances, and equities at play, Goodwin was capable of meeting his own needs. It therefore declined to award alimony. To that end, the court made extensive findings with respect to both the facts it found relevant to the overall question of alimony and the statutory factors described in Utah Code section 30-3-5.
¶12 The court found relevant the fact that the marriage was “entered into later in life for both parties,” and it considered the parties’ respective situations before, and contributions to, the marriage. For example, the court found that Goodwin “did not give up anything by entering into the marriage” and brought no “assets or real income into the marriage.” With respect to Petrzelka, the court found that she brought “an established and successful teaching career into the marriage” and that there was “no evidence that [Goodwin] did anything to improve [Petrzelka’s] income or her education or her earning capacity.”
¶13 The court also determined that the “most significant factor” in its alimony calculus was the parties’ agreement to share only a few joint living expenses during the marriage. The court found that during the marriage “the parties agreed to equally pay certain limited joint living expenses” and that those shared expenses were “very, very limited.” In this respect, the court noted and “place[d] great weight on the fact that the parties essentially maintained separate standards of living,” where each party kept “separate accounts and expenses during the marriage,” which accordingly “allowed each party to spend their respective income how they wished.”
¶14 Regarding their separate living standards, the court also found “very persuasive” that Goodwin had “always lived beyond his means with his separate credit cards,” noting that he entered the marriage with a credit card balance and that he continued to carry one “after the date of separation due to his continual over-spending.” The court found such facts as “strong evidence of the parties’ standard of living during the marriage and especially [Goodwin’s] standard of living.”
¶15 As to Goodwin’s needs, the court accepted his stated monthly expenses of $3,349, finding them, “for the most part, reasonable,” though noting that his cable TV expenses, food budget, and credit card bills were “too high.”
¶16 With regard to Goodwin’s ability to meet his needs, the court found that Goodwin had a gross income of $3,571 per month. It reached this figure by adding Goodwin’s Social Security and retirement income, which it found was $2,271 per month, and imputing to Goodwin additional income of $1,300 per month based on a finding that Goodwin could work part-time (i.e., twenty hours per week) at $15 per hour.
The court’s imputation determination was based on several findings about Goodwin’s ability to produce income. For example, the court found that Goodwin had “very marketable” and “extensive job skills,” given his background and work history, and that “nothing . . . limits him from doing some sort of work.” In this respect, the court noted evidence showing that Goodwin remained somewhat active in his retirement—that he was able to travel, walk and hike with dogs, carry his grandchildren, babysit, and volunteer. The court additionally found that Goodwin would receive a “considerable sum from [Petrzelka’s] retirement account, which he did not contribute to or cause in any way to increase,” and that “such funds can be used for his support and for the payment of his debts.”
¶17 The court also accepted Petrzelka’s assertion that there is no right to retire, stating that there is no “legal right to quit supporting oneself in a divorce situation such as this.” And the court found that, under the circumstances, it was “not equitable for [Goodwin] to choose not to work or take any action to support himself.” The court then ultimately concluded, “[b]ased on the foregoing facts, circumstances and equitable principles,” that Goodwin was “capable of meeting his own needs” and that therefore no alimony would be awarded.
B. Goodwin’s Challenges to the Court’s Alimony Decision
¶18 In challenging the court’s denial of alimony, Goodwin suggests that the court’s evaluation of the relevant alimony factors was not proper, most significantly its decision to impute income to him. He also raises various challenges to some of the court’s alimony findings. Because the court’s decision to impute income to Goodwin plays a significant role in its overall decision not to award alimony, we first address Goodwin’s challenges to that decision. We then address Goodwin’s remaining challenges.
1. Imputation of Income
¶19 Goodwin argues, relying heavily on the fact of his retirement before the parties’ separation, that the trial court exceeded its discretion by imputing income to him. As discussed above, the court had “considerable discretion” to adjust Petrzelka’s and Goodwin’s financial interests, and its “actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (cleaned up). Accordingly, to prevail on his challenge to the court’s imputation decision, Goodwin must demonstrate that the court misunderstood or misapplied our alimony laws, that the factual findings supporting its decision were clearly erroneous, or that the imputation has resulted in “such a serious inequity” so as to “manifest a clear abuse of discretion.” Id. (cleaned up).
¶20 Goodwin does not suggest that the court’s decision to impute income to him arose from a misapplication or misunderstanding of the law; indeed, while the fact of his retirement is central to his imputation challenge, he concedes that there is no statutory right to retire in Utah. Instead, he suggests that the court’s decision to impute income to him results in a serious inequity. He also challenges the evidentiary basis for the court’s decision to impute income to him at the amount of $15 per hour. We address each argument below.
a. The Decision to Impute Income
¶21 As previously discussed, a court may consider imputing income to an unemployed spouse in evaluating a request for alimony. See Gardner, 2019 UT 61, ¶ 98; Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223. Utah Code section 78B-12-203 addresses imputation of income and provides that such imputation “shall be based upon employment potential and probable earnings” in tandem with consideration of a variety of factors, to the extent they are known, such as “employment opportunities,” “work history,” “age,” “health,” “other employment barriers and background factors,” and “prevailing earnings and job availability for persons of similar backgrounds in the community.” Utah Code Ann. § 78B-12203(8)(b) (LexisNexis 2018).
¶22 Here, the court’s findings indicate that, despite Goodwin’s age and the fact of his retirement, the court was persuaded that the overall facts, circumstances, and equities surrounding the question of alimony supported the decision to impute income to him. Goodwin has not demonstrated that, given the whole host of considerations at play, this decision resulted in a serious inequity.
¶23 To begin with, the court found that Goodwin was capable of “some sort of work.” During the parties’ marriage, Goodwin had worked and had been able to produce income at a rate of over $50,000 per year—well exceeding the income the court imputed at $15 per hour on a part-time basis. The court also found that Goodwin had “very marketable skills” in light of his “background and work history,” which the evidence at trial suggested included experience in various employment sectors such as the Air Force, the solar power industry, pesticide sales, real estate, rural community development, land conservancy, and the financial industry. And in terms of his physical capabilities, the court found that, post-retirement, Goodwin had demonstrated an ability to pursue various activities, such as traveling, volunteering, walking and hiking with dogs, and interacting with and babysitting his grandchildren. Goodwin does not challenge these findings.
¶24 The court further found that the circumstances at play made it inequitable for Goodwin not to expend some effort to support himself. This was a later-in-life marriage for both parties, and the court found that the parties’ contributions to it at the outset differed. Petrzelka brought an established career, and the parties lived in the home she had purchased before the marriage. In contrast, Goodwin brought no “assets or real income” with him into the marriage, and the court found that there was no evidence that Goodwin “did anything to improve” Petrzelka’s income, education, or earning capacity.[2]
¶25 Most importantly, central to the court’s overall alimony decision was its determination that, for all intents and purposes, the parties lived separate financial lives during the marriage, with the result that the parties “essentially maintained separate standards of living.” While the parties may have contributed to certain shared monthly expenses, the court found that those shared expenses were “very, very limited” and were only ones to which both parties agreed. Significantly, the court also noted that Goodwin had consistently lived beyond his means, “with his separate credit cards,” before and during the marriage, as well as after the parties’ separation. Goodwin has not challenged these findings.
¶26 Given the full picture of the considerations and circumstances surrounding the court’s decision to impute income, we cannot say that imputing income to Goodwin on a part-time basis exceeded the bounds of the court’s broad discretion. Goodwin suggests his retirement during the parties’ marriage should have precluded the court from imputing income to him, but he has not demonstrated that this premise is at all sound. Because income imputation itself is primarily focused on a spouse’s ability to produce income, it is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income. E.g., Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶¶ 6–22, 437 P.3d 1257 (affirming the trial court’s imputation of income, despite the fact that the spouse had not earned such an income for nineteen years, where the evidence showed she was capable of doing so); Hansen v. Hansen, 2014 UT App 96, ¶¶ 2–3, 8–9, 15 & n.4, 325 P.3d 864 (imputing income at minimum wage to a nonworking spouse, and “in spite of her advancing age,” even where, at the time of the divorce, the parties were living on retirement benefits); Leppert, 2009 UT App 10, ¶¶ 11–12 (affirming the imputation of income to a recipient spouse who had not worked for more than two decades where the court found that she was “capable of generating employment income at the minimum wage level”).
¶27 Thus, in the unique circumstances surrounding the parties’ marriage, and pursuant to the numerous unchallenged findings with respect to Goodwin’s ability to produce income and the equities in play, the court’s decision to impute income to Goodwin on a part-time basis at twenty hours a week did not result in “such a serious inequity” so as to “manifest a clear abuse of discretion.” See Gardner, 2019 UT 61, ¶ 18 (cleaned up).
b. Imputing Income at $15 per Hour
¶28 Goodwin also challenges the evidentiary support for the court’s decision to impute income to him at a rate of $15 per hour. He claims that figure was based on a finding that $15 per hour was California’s minimum wage. He asserts that the wage was suggested by Petrzelka only during closing argument and that there was no evidence introduced at trial to support it.
¶29 We do not agree with Goodwin’s characterization of the court’s findings. During its oral ruling, when asked by Goodwin’s counsel what the basis was for its decision to impute income at $15 per hour, the court initially responded that the minimum wage in “California is at $15 or right close to $15 per hour.” But when pressed by Goodwin’s counsel about whether the court would reconsider if that figure was not correct, the court stated that, “even if that is not minimum wage [in California], [Goodwin] could go out and find a $15 per hour [job] with his background and his ability to work.” The court’s later written findings of fact and conclusions of law reflect this reasoning; the court did not find that $15 was California’s minimum wage or suggest that its decision to impute that figure was so based. Rather, the court relied entirely on its determination that Goodwin’s “extensive job skills, training and work history allows him to find work earning at least $15 per hour.”[3]
¶30 By narrowing his challenge to the evidence (or lack thereof) supporting the proposition that California’s minimum wage is $15 per hour, Goodwin has made no attempt to deal with the stated basis for the court’s finding, as evidenced by its written findings. See generally M.F. v. J.F., 2013 UT App 247, ¶ 6, 312 P.3d 946 (“Our case law is clear that where a court’s oral ruling differs from a final written order, the latter controls.”). See also Living Rivers v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶¶ 36–51, 417 P.3d 57 (declining to reach the merits of the appeal where the petitioner “utterly fail[ed] to engage with the substance of the [lower tribunal’s] ruling”); Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the appellants] have not addressed the actual basis for the district court’s ruling, they have failed to persuade us that the district court’s ruling constituted error . . . .”). Nor has Goodwin identified or dealt with the evidence supporting the court’s finding that his “job skills, training and work history” would allow him to find work at that amount per hour. Accordingly, Goodwin cannot persuade us that the court’s decision to impute income at that amount is against the clear weight of the evidence, and his challenge fails. See Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890.
¶31 In short, we affirm the court’s decision to impute income
to Goodwin at $15 per hour on a part-time basis. Goodwin has not demonstrated that the court’s decision to impute results in a serious inequity. He has also not adequately challenged the evidentiary basis supporting the decision to impute income in the amount of $15 per hour.
2. The Remaining Challenges to the Alimony Denial
¶32 Because we have affirmed the trial court’s decision to impute income as well as the hourly rate at which it did so, to persuade us that reversal is appropriate on the issue of alimony Goodwin must raise supportable challenges to other aspects of the court’s decision to deny alimony. Goodwin raises several distinct challenges to the court’s overall alimony denial, but none are ultimately persuasive.
a. Consequences of Imputing Income
¶33 First, Goodwin claims that the alimony denial is improper, even if the imputation decision is affirmed, because the court erred in dealing with the consequences attendant to imputing income to him. He claims that the court failed to properly account for the tax consequences of the imputed income, where it used his gross rather than net imputed income to calculate his ability to meet his needs. And he claims that the court should have increased his monthly expenses to reflect the costs of returning to the workforce, such as car-related costs, “increased food costs for eating outside the home, increased clothing costs, and increased health expenses.”
¶34 The tax issue is not properly before us. “A party seeking appellate review must provide a citation to the record showing that the issue was preserved in the trial court or a statement of grounds for seeking review of an issue not preserved in the trial court.” Shuman v. Shuman, 2017 UT App 192, ¶ 28, 406 P.3d 258 (cleaned up); Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (“We generally do not address unpreserved arguments raised for the first time on appeal. To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” (cleaned up)); see also Utah R. App. P. 24(a)(5)(B). Goodwin fails to demonstrate where in the record he preserved the request that the court impute net rather than gross income to him.[4] And based on our review of the record, we have found no request by Goodwin that the court consider the tax consequences of the imputed income. Thus, this issue has not been properly preserved for appeal.[5]
¶35 Moreover, even had Goodwin properly preserved the tax issue, he fails to demonstrate that this potential error affected the court’s alimony determination. Instead, he simply suggests that the court import the tax rate applicable to Petrzelka—someone employed full-time as a teacher, who is not retired and not receiving Social Security benefits as income—rather than explaining “what the actual tax consequences of the court’s error are or what they would have been had the court considered the tax implications” of his imputed income. See Gardner, 2019 UT 61, ¶ 105.
¶36 Similarly, Goodwin fails to carry his burden of persuasion with respect to the increased expenses related to working. While he argues that the court should have increased his expenses in various categories, at trial he did not present evidence of amounts to be added to give the court an evidentiary basis to do so. Likewise, on appeal, he fails to suggest any amount to be added for the various expenses or otherwise demonstrate how such increases might have affected the trial court’s overall alimony determination. See Pulham v. Kirsling, 2019 UT 18, ¶¶ 33–39, 443 P.3d 1217 (declining to reverse for a new trial on the issue of monthly income where the appellant had not demonstrated that, even if the court erred in its income finding, the error was harmful).
¶37 Thus, Goodwin has not shown that reversal is warranted on either point.
b. Marital Standard of Living Finding
¶38 Next, Goodwin disagrees with the court’s assessment of the effect the parties’ separate standards of living during the marriage ought to have on the question of alimony. He contends that if the parties indeed had separate standards of living as the court found, then, based on Petrzelka’s contributions to some of his living expenses during the marriage, the “only conclusion for the trial court to make is that [he] was and is still in need of alimony.”
¶39 However, alimony determinations are not made by rote, where there may be only one right conclusion. Instead, they are made in light of the range of unique circumstances in play. A trial court accordingly has considerable discretion in adjusting the parties’ financial and property interests post-divorce, and its adjustments to those interests are entitled to a presumption of validity. See Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2019) (setting forth a list of factors courts must consider in determining alimony); Gardner, 2019 UT 61, ¶ 18. To persuade us that reversal is appropriate, Goodwin must demonstrate something more than mere disagreement with the court’s evaluation of the evidence. See Gardner, 2019 UT 61, ¶ 18; Taft, 2016 UT App 135, ¶ 19.
¶40 And in suggesting that he should have been awarded alimony based on Petrzelka’s contributions to the few monthly expenses shared during the marriage, Goodwin fails to engage with the court’s reasoning or findings on their own terms or adequately account for the evidence supporting the decision not to award alimony. Among other things, he does not acknowledge the numerous findings that the evidence, as the court found it, suggested that Goodwin was capable of meeting his needs through his own income and that the parties’ deliberate separation of their finances during marriage was germane to the equities surrounding the alimony request. See Duchesne Land, 2011 UT App 153, ¶ 8; see also Rule v. Rule, 2017 UT App 137, ¶ 19, 402 P.3d 153 (“If the court determines that the receiving spouse is able to meet all her needs with her own income, then it should not award alimony.” (cleaned up)). Instead, Goodwin merely points to evidence he believes supports his position that the only appropriate conclusion was that he was in need of alimony at least in the minimum amount Petrzelka contributed to the parties’ joint expenses during the marriage. He cannot persuade us that reversal is appropriate on such a showing. See Taft, 2016 UT App 135, ¶ 19.
c. Material Omissions in the Findings
¶41 Finally, Goodwin claims that the court failed to make findings on certain “material” issues related to the alimony determination and that we should reverse on that basis. He contends that the court failed to account for $68.50 in monthly funeral costs and bank fees, which were not in his financial declaration but to which he testified. He also argues that “[t]here is no clear basis to determine what amount the trial court had in mind for [his] cable tv expenses, food expenses, and the credit card monthly payments,” where the court found that they were too high but made no specific findings on those expenses.
¶42 Even assuming there is merit to Goodwin’s complaints on these points, Goodwin must demonstrate that there is a “reasonable likelihood” that the omissions and errors he identifies affected (or, if in error, would affect) the court’s alimony denial. See Pulham, 2019 UT 18, ¶¶ 33–39 (declining to reverse for a new trial on the issue of monthly income where the appellant had not demonstrated that, even if the court erred in its income finding, the error was harmful); see also Gardner, 2019 UT 61, ¶ 103 (concluding that the appellant failed to meet her burden on appeal where she made no attempt to show that the court’s error resulted in harm). See generally Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). In arguing that the court’s decision ought to be reversed for failure to make findings on this handful of expenses, Goodwin does not address all the reasons why alimony was denied or whether the court would have made a different decision had it considered the additional issues.
¶43 As discussed above, the court’s ultimate decision to deny alimony was based on more than mathematics. The court sought to reach what it considered to be an appropriate alimony determination in light of all the “facts, circumstances and equitable principles” uniquely at play. Thus, the court’s decision to deny alimony took into consideration more than simply the numbers the parties attached to their respective expenses and incomes. And because this is so, to persuade us that reversal is appropriate, Goodwin must demonstrate that even if the court’s omissions were in error, it is reasonably likely that the court would not have denied alimony in light of all the relevant facts, circumstances, and equities. See Pulham, 2019 UT 18, ¶¶ 33–39. Goodwin does not attempt to make any such showing.
¶44 Further, even on the numbers alone, we question whether Goodwin could demonstrate harm. If the court were to enter additional findings on Goodwin’s cable TV, food, and credit card expenses, the amount of Goodwin’s expenses would presumably decrease since the court found that those expenses were “too high.” And given that the court determined that Goodwin’s income—$3,571 per month—already exceeded the entirety of the expenses he claimed—$3,349 per month—we find it difficult to conclude that adding an additional $68.50 to his expenses would likely tip the balance in favor of an alimony award, particularly where other equities factored into the court’s decision. Accordingly, he has not demonstrated that, even assuming it was error not to make additional findings on the expenses to which he points, the error was harmful to him. Goodwin is therefore not entitled to reversal on this issue.
¶45 In sum, we conclude that Goodwin has not shown that the court exceeded its discretion in either its decision to impute income to him or in its overall decision to deny alimony. We therefore affirm the court’s denial of alimony.
II. Retirement Division
¶46 Goodwin argues that the trial court erred by valuing the marital retirement assets as of March 1, 2015 (following the parties’ separation), rather than the time of the divorce decree or trial in 2018. He claims that the circumstances in this case “did not warrant deviating from the standard of valuing the marital estate at the time of the divorce decree or trial.” He also generally contends that this decision was inequitable.
¶47 While a court should generally value the marital estate “at the time of the divorce decree or trial,” a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant. Rayner v. Rayner, 2013 UT App 269, ¶ 19, 316 P.3d 455 (cleaned up); see also Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 39, 257 P.3d 478.
¶48 Here, the court had a reasoned basis for concluding that circumstances warranted deviation from the general rule. The court found that, around the time the parties separated in February 2015, Petrzelka “stopped personally contributing to her retirement account” but that “she maintained such account and it continued to grow.” As to Goodwin, the court found that “once [the parties] separated,” Goodwin “continued to overspend and live beyond his means” and “started dissipating his retirement accounts, rather than maintaining those.” For these reasons, the court determined that it would be “inequitable to use a later date,” and therefore determined that the marital period for valuing both parties’ retirement accounts would be from the date of the marriage in September 2004 to March 1, 2015.
¶49 Goodwin has not shown that the court’s decision to value the parties’ retirement accounts as of March 1, 2015, was inequitable or otherwise exceeded the court’s broad discretion. The trial court’s choice of March 1 as the relevant valuation date was thoughtfully made based on the parties’ respective treatment of their retirement accounts at the time of separation. Specifically, Petrzelka stopped contributing to her account, while Goodwin began drawing from his accounts to supplement his income. March 1, 2015, therefore fairly represents the approximate date that both parties’ treatment of their retirement accounts, in light of their separation, changed. In these circumstances, we cannot say that the trial court’s decision was inequitable or that it otherwise exceeded its broad discretion in deviating from the general rule. See Rayner, 2013 UT App 269, ¶ 19; Jacobsen, 2011 UT App 161, ¶ 39.
III. Attorney Fees
¶50 Both parties request attorney fees on appeal. Goodwin asks for fees because he was awarded them below. Petrzelka asks for her attorney fees on appeal, invoking rule 33 of the Utah Rules of Appellate Procedure and this court’s “inherent equitable power” to award fees “in the interest of justice and equity.”
¶51 As a general rule, a prevailing party on appeal who was awarded attorney fees below will also be awarded their appellate fees. See Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 52, 176 P.3d 476. Because Goodwin has not prevailed on appeal, we decline to award him his fees.
¶52 As for Petrzelka’s request, because she was not awarded attorney fees below, she is not entitled to fees simply by virtue of prevailing on appeal. See id. And while attorney fees under rule 33 of the Utah Rules of Appellate Procedure may be awarded if a reviewing court determines that the appeal “is either frivolous or for delay,” Utah R. App. P. 33(a), “the imposition of such a sanction is only to be used in egregious cases,” Pyper v. Reil, 2018 UT App 200, ¶ 28 n.3, 437 P.3d 493 (cleaned up). We conclude that this is not such a case. For similar reasons, we are not inclined to otherwise exercise our equitable powers to award fees. We therefore decline Petrzelka’s request for attorney fees.
CONCLUSION
¶53 We affirm. Goodwin has not demonstrated that the trial court exceeded its discretion by imputing income to him at its chosen hourly rate or by determining that alimony was not warranted under the circumstances. Goodwin also has not demonstrated that the court’s decision to value the parties’ retirement accounts as of March 1, 2015, was inequitable or constituted an abuse of discretion. Finally, we decline to award either party their attorney fees.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] “Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶ 8 n.5, 437 P.3d 1257 (cleaned up).
[2] Goodwin briefly challenges the court’s findings with respect to his contributions to the marriage by characterizing them as findings that he “gave up nothing and brought nothing to this marriage” and by contending that such findings were “pure speculation.” However, Goodwin supports this argument by pointing to evidence that supports only his own position. He does not identify or address the evidence that might support the court’s findings on these points. To properly challenge the court’s findings, Goodwin must demonstrate that they do not follow logically from the evidence, or, stated another way, that they are against the clear weight of it. See Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134; Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if [this] court has a definite and firm conviction that a mistake has been made.” (cleaned up)). Goodwin has not met that burden.
[3] Following the court’s oral ruling, Goodwin objected to the proposed findings of fact and conclusions of law on several grounds, one of them being the proposed basis of the court’s decision to impute income at $15 per hour. The proposed findings of fact, like the final written findings, made no mention of California’s minimum wage. In his objections, Goodwin argued that language should be added to reflect a further finding by the court that “California’s minimum wage” is $15 per hour “or close thereto.” He suggested that such language was necessary because it “was the Court’s actual finding about why $15 per hour was being imputed” to him. By declining to include such language in its findings of fact, the court necessarily rejected Goodwin’s position.
[4] Instead, in his objections to the proposed findings of fact and conclusions of law, Goodwin specifically asked the court to “include the word ‘gross’ in describing the amount of income the Court is imputing to [him].”
[5] Ordinarily, parties’ respective tax obligations ought to be taken into consideration in making an alimony determination. See McPherson v. McPherson, 2011 UT App 382, ¶¶ 13–16, 265 P.3d 839.
Opinion
No. 20180732-CA
Filed January 24, 2020
First District Court, Logan Department
The Honorable Thomas Willmore
No. 094100623
David Pedrazas, Attorney for Appellant
Marlin J. Grant, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE GREGORY K. ORME concurred. JUDGE JILL M.
POHLMAN dissented, with opinion.
CHRISTIANSEN FORSTER, Judge:
¶1 Kevin Scott Peck appeals the district court’s denial of several motions aimed at correcting an alleged clerical error in a qualified domestic relations order (QDRO) entered by the court. We affirm the district court’s determination that the QDRO reflected the parties’ intent but reverse the court’s dismissal of Kevin’s[1] rule 60(b) motion on timeliness grounds and remand for further proceedings.
BACKGROUND
¶2 Kevin married Reggie Ann Peck on June 15, 2001, and the parties divorced on July 15, 2003. Their decree of divorce awarded Kevin all interest in his retirement pension.
¶3 After a short separation, the parties began cohabiting and then remarried on October 22, 2004. The parties divorced a second time on November 19, 2010. The parties’ second decree of divorce, which was based on the parties’ stipulation, referenced the prior marriage, stating that the parties “had previously been married to each other on June 15, 2001, then divorced.” With respect to retirement, the second decree provided, “Retirement will be divided according to the formula set forth in the case of Woodward v. Woodward.” It also provided that the division would be accomplished by the entry of a QDRO.
¶4 In early 2016, Reggie submitted a QDRO for approval, which stated, “The Member and the Alternate Payee were married on June 15, 2001. The Member and the Alternate Payee were divorced on November 19, 2010.” The QDRO further stated that “[t]he Alternate Payee is awarded 50% of the Member’s benefits accrued during the marriage.” Kevin did not object to the QDRO, and the court signed it on May 12, 2016.[2]
¶5 On October 24, 2017, seventeen months after the final QDRO was signed, Kevin filed a motion for a nunc pro tunc order to correct the date of the parties’ marriage in the QDRO from June 15, 2001, to October 22, 2004, asserting that the second decree divided only retirement accrued during the second marriage. Reggie objected, asserting that the date used in the QDRO reflected the parties’ intent to “use[] the [first] marriage to equitably divide the retirement” “[b]ecause there was not that much of a gap between the [first] marriage and the second remarriage.”
¶6 The court held a hearing on the matter on January 18, 2018. At the hearing, Reggie submitted a letter sent to her counsel from prior counsel that included a QDRO drafted in 2010 that had been approved as to form by Kevin’s prior attorney. Like the QDRO ultimately filed with the court, this QDRO included a marriage date of June 15, 2001. Reggie argued that the earlier QDRO demonstrated that the parties had “always” intended to “put the first marriage date as the date the QDRO would be divided and through the divorce period.” Her attorney explained that he “didn’t think [the Decree] needed [the date] because [Kevin’s prior attorney] signed off on the QDRO where it said that.” The district court found, based on the QDRO signed by Kevin’s attorney in 2010, “that there is enough evidence to show that the parties intended to use the first marriage date to split the retirement.” It therefore denied Kevin’s motion to enter a nunc pro tunc order amending the QDRO.
¶7 Kevin next filed a motion pursuant to rules 60(a) and 60(b) of the Utah Rules of Civil Procedure, requesting that the court either correct the date as a clerical error or set aside the QDRO using “the residuary clause of rule 60(b)” due to gross attorney negligence. (Quotation simplified.) The court denied this motion as well. First, the court rejected Kevin’s rule 60(a) argument because it found, “based upon the previous findings and ruling by the Court at the January 18, 2018, hearing,” “that there was no clerical mistake.” Second, the court rejected Kevin’s rule 60(b) argument because it determined that Kevin’s arguments on this point were “based on mistake or excusable neglect,” matters that must be raised, according to rule 60, “not more than 90 days after entry of the judgment or order.” Utah R. Civ. P. 60(c). The court found that Kevin was attempting to “circumvent the three month period” by framing his arguments under the rule 60(b)(6) residuary clause when his allegations as to the competence of his prior attorneys actually concerned mistake and excusable neglect. The court therefore found Kevin’s rule 60(b) motion to be untimely and denied it on that basis. Kevin now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Kevin asserts that the district court erred in denying his
motion for a nunc pro tunc order, his rule 60(a) motion to correct a clerical mistake, and his rule 60(b) motion to set aside the QDRO. Because both the motion for a nunc pro tunc order and the rule 60(a) motion turned on the existence of a clerical error, we address Kevin’s arguments with respect to both motions as a single issue. In doing so, we accept the court’s factual findings unless they are shown to be clearly erroneous, Stonehocker v. Stonehocker, 2008 UT App 11, ¶¶ 9, 44, 176 P.3d 476, but review its ultimate determination regarding the existence of a clerical error for correctness, see State v. Rodrigues, 2009 UT 62, ¶ 11, 218 P.3d 610; Behrman v. Behrman, 2006 UT App 257, ¶ 8, 139 P.3d 307. With respect to the court’s denial of Kevin’s rule 60(b) motion, the court “is afforded broad discretion . . . , and its determination will not be disturbed absent an abuse of discretion.” Birch v. Birch, 771 P.2d 1114, 1117 (Utah Ct. App. 1989).
ANALYSIS
I. Clerical Error
¶9 “A clerical error is one made in recording a judgment that results in the entry of a judgment which does not conform to the actual intention of the court.” State v. Rodrigues, 2009 UT 62, ¶ 14, 218 P.3d 610 (quotation simplified). Rule 60(a) of the Utah Rules of Civil Procedure permits a court to “correct a clerical mistake . . . whenever one is found in a judgment, order, or other part of the record.” Utah R. Civ. P. 60(a). “On the other hand, a judicial error is one made in rendering the judgment and results in a substantively incorrect judgment.” Rodrigues, 2009 UT 62, ¶ 14 (quotation simplified). Judicial errors are not subject to correction under rule 60(a) but must be challenged either in the context of appeal or, in limited cases, through a rule 60(b) motion to set aside. See Fisher v. Bybee, 2004 UT 92, ¶¶ 10–11, 104 P.3d 1198 (explaining the limitations of rule 60(b) in challenging alleged legal errors); Thomas A. Paulsen Co. v. Industrial Comm’n, 770 P.2d 125, 130 (Utah 1989) (explaining that a district court may generally correct only clerical errors, not judicial errors). “The distinction between a judicial error and a clerical error does not depend upon who made it. Rather, it depends on whether it was made in rendering the judgment or in recording the judgment as rendered.” Lindsay v. Atkin, 680 P.2d 401, 402 (Utah 1984) (quotation simplified).
¶10 Kevin maintains that the use of the first marriage date, rather than the second marriage date, in the QDRO is a clerical error because it does not reflect the intention of the second decree. Reggie, on the other hand, asserts that this cannot be considered a clerical error because the court found that the parties intended to use that date in the QDRO.[3]
¶11 “[O]ur clerical error analysis generally focuses on (1) whether the order or judgment that was rendered reflects what was done or intended, (2) whether the error is the result of judicial reasoning and decision making, and (3) whether the error is clear from the record.” Rodrigues, 2009 UT 62, ¶ 14. Here, the court found that the parties intended to use the date of the first marriage in the QDRO based on Kevin’s prior attorney’s approval of the QDRO as to form. Kevin does not challenge this finding on appeal but instead asserts that any such intention is irrelevant because the QDRO must reflect the terms of the second decree, which contains no findings or conclusions indicating the parties’ or the court’s intent to divide the retirement based on the first marriage date. See supra note 3. But the fact that the plain language of the divorce decree suggests that it may have been legal error to use the first marriage date in the QDRO does not mean that the parties and the court did not intend to use that date. And Kevin has not challenged the court’s finding that the parties intended—erroneously or otherwise—to use the first marriage date. The fact that the parties stipulated to and the court approved a QDRO that contained a legal error ultimately demonstrates an error of judicial decision making, not a mistake in memorializing the QDRO. But Kevin did not object to the QDRO when it was proposed and therefore lost the opportunity to challenge this legal error directly. While this is unfortunate, he cannot now remedy his failure to timely object by reframing the error as clerical. Because we agree with the district court that Kevin cannot establish that the marriage date used in the QDRO was a clerical error, we affirm the district court’s refusal to enter a nunc pro tunc order reforming the QDRO.
II. Rule 60(b)
¶12 Kevin next asserts that the district court erred in denying his motion to set aside the QDRO pursuant to the residuary clause of rule 60(b) of the Utah Rules of Civil Procedure on the ground that his prior attorneys were grossly negligent in failing to notify him of hearings and orders, failing to appear at hearings, and failing to object to the QDRO in a timely manner. The district court determined that these arguments could not properly be raised under the residuary clause of rule 60(b) because Kevin’s prior attorneys’ actions “may constitute a mistake or excusable neglect” and therefore would be more properly addressed pursuant to rule 60(b)(1). Because a motion under rule 60(b)(1) must be brought within ninety days, the court dismissed Kevin’s motion as untimely.
¶13 “Rule 60(b)(6) [the residuary clause] is the ‘catch-all’ provision of rule 60(b).” Menzies v. Galetka, 2006 UT 81, ¶ 71, 150 P.3d 480. Therefore, “it may not be relied upon if the asserted grounds for relief fall within any other subsection of rule 60(b).” Id. Rule 60(b)(1) permits a court to set aside a judgment for “mistake, inadvertence, surprise, or excusable neglect.” Utah R. Civ. P. 60(b)(1). “In cases where subsection (b)(1) applies, a movant may not attempt to circumvent the three-month filing period by relying on another subsection.” Menzies, 2006 UT 81, ¶ 65.
¶14 Gross attorney negligence that is “too egregious and exceptional to be encompassed by rule 60(b)(1)” may be assessed under the residuary clause. Id. ¶ 74. Here, the district court did not consider whether the actions of Kevin’s attorneys constituted gross negligence. Instead, it determined that Kevin’s argument did not fall within the residuary clause because it believed the argument could be considered under rule 60(b)(1). See id. But our supreme court rejected this approach in Menzies: “The rule is that 60(b)(6) cannot be relied upon if the grounds for relief fall within another subsection, not that 60(b)(6) does not apply if the court has . . . considered another ground.” Id. The district court in this case did not find grounds under rule 60(b)(1). Instead, it found only that “if [Kevin’s] attorney failed to give him notice or object that may constitute a mistake or excusable neglect” and that “the issues raised . . . are possibly mistake or excusable neglect.”[4] (Emphases added.) Without a finding that grounds for relief existed under rule 60(b)(1), the district court should not have refused to consider Kevin’s gross attorney negligence argument under the residuary clause. We therefore must reverse the district court’s ruling on Kevin’s rule 60(b) motion and remand for further proceedings.[5]
¶15 On remand, the court should determine whether Kevin’s arguments establish mistake, excusable neglect, gross attorney negligence, or none of these. If the court does find that Kevin’s prior attorneys committed gross negligence, then the motion may be rejected as untimely only if the court determines that it was not “filed within a reasonable time.” Utah R. Civ. P. 60(c). See generally Crane-Jenkins v. Mikarose, LLC, 2015 UT App 270, ¶ 12, 374 P.3d 1024 (discussing the standard for determining whether a rule 60(b) motion has been brought within a reasonable time).
CONCLUSION
¶16 Because the marriage date listed in the QDRO was a legal error, rather than a clerical error, the district court did not err in declining to enter a nunc pro tunc order or in denying Kevin’s rule 60(a) motion. However, we reverse and remand the court’s ruling on Kevin’s rule 60(b) motion because the court’s findings were insufficient to support its determination that the motion was untimely.
———————————
POHLMAN, Judge (concurring and dissenting):
¶17 I would affirm. While I join the majority’s affirmance of the district court’s refusal to enter a nunc pro tunc order, supra ¶ 11, I would not reach the merits of the district court’s rule 60(b) decision, supra ¶¶ 12–15, or reverse on that basis.
¶18 The majority concludes that the district court erred in its rule 60(b) assessment because it failed to make sufficient findings to support its apparent determination that the motion fell under subsection (b)(1) rather than the catchall subsection, (b)(6), and was therefore untimely. Supra ¶¶ 12–15. The majority faults the court for failing in its rule 60(b) decision to find that grounds under subsection (b)(1) had “actually [been] established.” Supra ¶ 14 & n.4. But on appeal, Kevin has mounted no challenge to the sufficiency of the district court’s rule 60(b) findings, and he makes no argument that its decision should be reversed because it failed to find that rule 60(b)(1) grounds had been established. Thus, in my view, the majority’s conclusion on the rule 60(b) issue seems to stray into advocacy, essentially making for Kevin an argument that he did not make for himself and then reversing the matter on that ground.
¶19 As our supreme court has explained, “our appellate system has developed along the adversarial model, which is founded on the premise that parties are in the best position to select and argue the issues most advantageous to themselves, while allowing an impartial tribunal to determine the merits of those arguments.” State v. Johnson, 2017 UT 76, ¶ 8, 416 P.3d 443 (cleaned up); see also id. ¶ 74 (Lee, J., concurring) (“Ours is an adversary system. Within it judges are sworn to follow the law in an evenhanded, objective manner. We sidestep that system when we take on a role of advocacy.”). In such a system, values of fairness and judicial economy dictate that our appellate courts “will not independently root around in the record to try to figure out whether” the district court “got it right.” Living Rivers v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2017 UT 64, ¶ 51, 417 P.3d 57; see also Johnson, 2017 UT 76, ¶ 8 (stating that our adversarial system “preserves judicial economy and fairness between the parties”).
¶20 Instead, in our system, appellants carry the burden to persuade a reviewing court through reasoned, supported argument that the district court committed harmful, reversible error—a burden that necessarily requires the appellant to address the reasoning and basis of the district court’s ruling and to explain why that court got it wrong. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51; Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (“Because [the appellants] have not addressed the actual basis for the district court’s ruling, they have failed to persuade us that the district court’s ruling constituted error . . . .”); see also Utah R. App. P. 24(a)(8). If an appellant fails to carry this burden, our appellate courts have repeatedly held that the desire to correct what may amount to legal error must give way to the well-established “institutional constraints” and values underlying our adversarial system. Goldenwest Fed. Credit Union v. Kenworthy, 2017 UT App 191, ¶ 16, 406 P.3d 253 (affirming the district court’s grant of summary judgment where the appellant failed to demonstrate error in the district court’s decision, observing that principles of “preservation and adequate briefing must prevail over legal correctness”); see also Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51 (affirming the decision below where the appellant “utterly” failed to point out any error in that decision or explain why the decision was wrong, instead merely restating the same legal position that was rejected below); Allen v. Friel, 2008 UT 56, ¶¶ 7, 14, 194 P.3d 903 (setting forth an appellant’s burden on appeal, which requires addressing the district court’s reasoning and demonstrating the error in that reasoning and the court’s ultimate ruling, and dismissing the appellant’s appeal where he failed to address the district court’s actual holdings).
¶21 These same principles, in my view, should dictate affirmance of the district court’s rule 60(b) ruling here. Kevin merely restates to us the same reasons why he should be entitled to relief under rule 60(b) that were rejected by the district court’s ruling. See Living Rivers, 2017 UT 64, ¶¶ 41–43, 50–51. He makes no attempt to explain why the basis for the district court’s decision is wrong, and he makes no argument that its findings fail to sufficiently support its ultimate conclusion. See id. Indeed, Kevin’s opening brief is virtually identical to the motion to set aside that the district court rejected.
¶22 The majority’s conclusion on the rule 60(b) issue may be correct as a matter of law. But, in my view, Kevin has not met his burden to persuade us to even reach the merits of the issue. In such circumstances, as we have held before, “our institutional constraints [ought to] prevent us from reversing on the basis of a winning argument that [Kevin] did not make.” See Goldenwest Fed. Credit Union, 2017 UT App 191, ¶ 16. On this basis, I would affirm the district court’s rule 60(b) decision.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] “As is our practice in cases where both parties share a last name, we refer to the parties by their first name with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
[2] 2. Actually, three versions of the QDRO were submitted to the court and signed—one on February 4, 2016, one on March 18, 2016, and one on May 12, 2016. All three versions contained the June 15, 2001 marriage date and purported to divide Kevin’s defined benefit plan. As any differences between the orders are not relevant to the issue presented on appeal, we refer to the most recent version of the order for simplicity.
[3] Based on the plain language of the second divorce decree, which was based on the parties’ stipulation, the use of the first marriage date in the QDRO does seem to be an error. A QDRO must conform to the terms of the decree that it effectuates. Indeed, a QDRO is merely a mechanism by which the retirement provisions of a divorce decree are enforced. See In re Kiley, 2018 UT 40, ¶ 4, 427 P.3d 1165 (defining a QDRO as “the document that would permit [an alternate payee] to access [the plan participant’s] retirement funds”); Bailey v. Bailey, 745 P.2d 830, 832 (Utah 1987) (explaining that a QDRO “furnishes instructions to the trustee of a retirement plan and specifies how distributions should be made”); Potts v. Potts, 2018 UT App 169, ¶ 1 n.2, 436 P.3d 263 (“A [QDRO] instructs the trustee of a retirement plan and specifies how distributions should be made, to whom, and when.” (quotation simplified)); see also Johnson v. Johnson, 2014 UT 21, ¶ 17 n.28, 330 P.3d 704 (rejecting the assertion that a QDRO must be filed for a beneficiary “to enforce her right to payments,” explaining that the party’s entitlement to a share of the benefits is established by the decree itself, not subsequent documents filed to enforce the payment by a plan administrator). And there are no findings or other explanation in the second decree indicating that the parties or the court intended for the retirement to be divided as of the date of the first marriage. The only mention of the previous marriage in the decree is the bare factual statement, in an early paragraph outlining the historical background of the parties’ marriage, that the parties “had previously been married to each other on June 15, 2001, then divorced.” The decree does not assign any relevance to this factual statement, let alone link it specifically to the retirement division. The retirement provision states only that “[r]etirement will be divided according to the formula set forth in the case of Woodward v. Woodward,” 656 P.2d 431 (Utah 1982), and in fact, the decree’s alimony provision explicitly states, “This is a 5 year marriage . . . .” Further, we have previously required courts attempting to divide assets from a previous marriage in a second divorce to make specific findings supporting either a modification of the first divorce or a division of premarital assets based on “the existence of exceptional circumstances.” Kelley v. Kelley, 2000 UT App 236, ¶¶ 22–24, 9 P.3d 171. No such findings were contained in the decree here.
[4] In its conclusion, the court states, “Rule 60(b)(6) cannot be used to circumvent the three month period when Respondent is laying blame upon his attorney, which allegations the Court has found amounts to mistake or excusable neglect.” (Emphasis added.) However, the court’s actual findings are equivocal on this point, as noted above, and the court did not make any findings regarding the efficacy of the attorneys’ actions or inaction, how the prior attorneys’ representation affected Kevin, or whether any mistake or neglect on the part of the prior attorneys was excusable. Thus, we cannot construe this final summation in the district court’s order as a finding that the attorneys’ actions actually established grounds of mistake or excusable neglect.
[5] 5. The dissent disagrees with our decision to address this argument, asserting that Kevin has not adequately challenged the court’s findings on appeal. While Kevin has certainly not developed his rule 60(b) argument as thoroughly as we would like to see, he is clear in asserting that Menzies places gross attorney negligence within the residuary clause of rule 60(b) and that the district court erred in declining to consider his arguments under the residuary clause. As the dissent points out, this is the same argument he made to the district court, but that is not inherently a basis to reject the argument or to consider it inadequate. On appeal, Kevin asks us to correct what he perceives as the district court’s error in rejecting his argument in the first place. While our analysis is ultimately a bit more nuanced, in that we acknowledge that analysis under the residuary clause may be precluded by a finding that the facts actually fall under another provision, Kevin’s assertion that gross attorney negligence falls under the residuary clause is well-taken.
DEIDRE SUE JANSON,
Appellant,
v.
JEFFREY ALAN JANSON,
Appellee.
Opinion No. 20170541-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 164906327
Jamie Carpenter, Attorney for Appellant
Kara L. Barton and Ashley Wood, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deidre Sue Janson appeals the district court’s order denying her motion to set aside a written stipulation (the Stipulation) entered in her divorce action against Jeffrey Alan Janson. We affirm.
BACKGROUND
¶2 The parties entered into the Stipulation following mediation on November 14, 2016, to resolve the issues in their divorce. As part of the Stipulation, Deidre[1] agreed to pay Jeffrey alimony of $2,500 per month for eighteen months and $1,500 per month for an additional eighteen months.
¶3 The Stipulation awarded the marital home to Jeffrey.
Deidre was awarded half of the equity in the home, less $45,000 that constituted Jeffrey’s inherited funds. The Stipulation also divided the equity in the parties’ vehicles, requiring Deidre to pay Jeffrey $13,178 from her share of the parties’ bank accounts to equalize the vehicle equity disparity.
¶4 The parties had a number of retirement funds and accounts. Regarding the retirement, the parties agreed as follows:
[Deidre] has the following retirement accounts: Utah Retirement in the amount of approximately $72,440; General Electric in the approximate amount of $100,435; Roth IRA in the approximate amount of $18,252; FDIC in the approximate amount of $16,719 and $17,431; and Utah Pension in the amount of $15,281.
[Jeffrey] has the following retirement accounts: Fidelity in the approximate amount of $22,012; Bernstein in the approximate amount of $18,305.
The above retirement accounts will be divided equally between the parties. In addition [Deidre] has a premarital IRA in the approximate amount of $17,682 which is her separate property.
[Jeffrey’s] Alliant Technical Systems Pension plan which will be divided pursuant to the Woodward formula.
The parties will share equally the cost of any qualified domestic relation order.
¶5 On January 12, 2017, Deidre moved to set aside the Stipulation on the ground that there was not a meeting of the minds regarding various provisions in the agreement. She asserted that she “did not receive [Jeffrey’s] financial disclosures until the morning of mediation and was not able to consult with her attorney prior to mediation.” She asserted that because her Utah pension was listed with its approximate value alongside the other retirement accounts, her understanding was that Jeffrey was to receive only half of the listed $15,281 partial lump sum value of that pension rather than half of the entire monthly payment amount as determined by a qualified domestic relations order (QDRO). According to Deidre, the total value of Jeffrey’s half of the pension if the monthly payment option were utilized would amount to approximately $80,000. Deidre claimed that had she understood that Jeffrey would be entitled to half of the entire Utah pension, she would not have agreed to provisions granting Jeffrey premarital equity in the home. She pointed to the lack of specific dates for the accounts to be divided and the impracticality of preparing a QDRO for every retirement account as support for her assertion that the Stipulation should be interpreted as granting Jeffrey only half of the stated partial lump sum value of her Utah pension account.[2]
¶6 Jeffrey opposed the motion to set aside the Stipulation, pointing out that his financial declaration was provided to Deidre well in advance of mediation and that she was represented by counsel at the mediation. He also explained the discrepancy between how the Stipulation described the division of his pension account and how it described the division of Deidre’s—his account had been partially accrued prior to the marriage, whereas Deidre’s had been accrued entirely during the period of the marriage. He asserted that Deidre was aware that an equal division of her pension could result in him receiving half of the monthly payments rather than half of the partial lump sum payout value because her own financial declaration included a summary of the various payout options. Jeffrey also asserted that only three QDROs, at maximum, were necessary to divide the retirement accounts.
¶7 In responding to Jeffrey’s memorandum in opposition to her motion, Deidre raised additional issues impacting the Stipulation’s alimony award—she indicated that after filing the motion to set aside, she was involuntarily terminated from her job without notice, that the loss of her job precluded her from continuing to pay alimony, and that Jeffrey had become eligible to draw on his social security and retirement accounts to support himself. She asserted that these changes in circumstances justified setting aside the Stipulation.
¶8 Following a hearing, the district court denied Deidre’s motion. The court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit. The court determined that the language in the Stipulation dividing the pension equally was clear as to how the retirement accounts would be treated and contained sufficient detail to enforce the Stipulation. The court stated that it was reasonable to anticipate that additional details would be filled in when the QDROs were prepared. The court also determined that issues related to Deidre’s alleged change in circumstances should be handled separately as a petition to modify.
¶9 Deidre now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Deidre asserts that the Stipulation is unenforceable because there was no meeting of the minds regarding various aspects of the Stipulation.[3]
Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.
LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (quotation simplified).
¶11 Deidre also asserts that the district court erred in declining to consider her substantial change in circumstances argument as a basis for setting aside the Stipulation and instead determining that a petition to modify was the necessary route for her to pursue this argument. Whether a district court erred in accepting and enforcing a proffered stipulation is reviewed for an abuse of discretion. See In re N.M., 2018 UT App 141, ¶ 17, 427 P.3d 1239.
ANALYSIS
The District Court Did Not Clearly Err in Rejecting Deidre’s Assertion That There Was No Meeting of the Minds.
¶12 “It is a basic principle of contract law there can be no contract without a meeting of the minds.” Granger v. Granger, 2016 UT App 117, ¶ 14, 374 P.3d 1043 (quotation simplified). “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (quotation simplified). “Whether there is a meeting of the minds depends on whether the parties actually intended to contract, and the question of intent generally is one to be determined by the trier of fact.” Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (quotation simplified).
¶13 “[I]n divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings . . . .” Granger, 2016 UT App 117, ¶ 15. “Because retirement funds are prospectively marital property if acquired or contributed to during the marriage, the distribution of such marital funds must fit within the overarching principle of equity unless the parties have freely and knowingly agreed to a different result that has been appropriately sanctioned by the court.” Id. ¶ 16. Nevertheless, “it is not the court’s prerogative to step in and renegotiate the contract of the parties. Instead, courts should recognize and honor the right of persons to contract freely and to make real and genuine mistakes when the dealings are at arms’ length.” Id. ¶ 14 (quotation simplified).
A. Retirement Funds
1. The Court Did Not Err in Accepting Jeffrey’s Interpretation of the Stipulation.
¶14 At the evidentiary hearing, the district court considered both parties’ testimonies regarding their understanding of the Stipulation and their intent regarding the division of their retirement funds. Having considered this evidence, the district court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit and that the Stipulation was clear that the listed retirement accounts were to be divided equally between the parties. Deidre asserts that this conclusion was clearly erroneous because it is inconsistent with the principle that retirement funds that can be “presently valued” should be equally divided.
¶15 As a general matter, equitable division of a defined benefit plan is accomplished by the Woodward formula[4] and equitable division of a defined contribution plan is accomplished by dividing the value contributed during the marriage. Granger Granger, 2016 UT App 117, ¶ 23, 374 P.3d 1043. While Deidre’s pension fund had a “partial lump sum” payout option—which was listed as the “approximate value”[5] in the Stipulation—it also had a monthly payment option. Because pension funds are presumptively divided according to the Woodward formula, an interpretation of the Stipulation that requires dividing the entire fund rather than only the partial lump sum amount is more consistent with equity. It is also the most logical approach in light of Deidre’s own financial declaration, which acknowledged that her Utah pension had a monthly payment option.
¶16 Deidre also asserts that Jeffrey himself testified that he believed the “approximate” amount listed for Deidre’s pension, rather than the entire pension, would be divided equally. But the record does not support Deidre’s characterization of Jeffrey’s testimony. At the hearing, Jeffrey was asked, “So it was your understanding that [the] specific value you listed would be, at least with 401-Ks or whatnot, would be divided. You would get half of that value?” (Emphasis added.) Jeffrey responded, “It would be half the value as identified by the amounts listed in the stipulation.” Jeffrey was asked specifically about the division of the 401(k)s, not the pension. Thus, his answer to this question cannot be construed as a statement that he expected and agreed that the pension would be divided only according to the amount listed in the Stipulation.
¶17 Indeed, Jeffrey testified that based on the document Deidre produced in her financial declaration outlining the various options for the distribution of the Utah pension, he understood that Deidre’s pension could be taken either “as a partial lump sum” or as “monthly payments” and that he “would have a choice” either to take half of the monthly payments or to add half of the partial lump sum to his share of the distributions of the other IRA and 401(k) accounts. Deidre also testified that she knew that a monthly payment could be an option for payout of her pension. Thus, the court’s interpretation of the Stipulation is supported by the evidence and is not clearly erroneous.
2. The Court Did Not Err in Enforcing the Stipulation.
¶18 Deidre also asserts that the Stipulation should not be enforced because it was not equitable. She argues that the district court should have considered the Stipulation as a whole and recognized that she had given up other valuable assets in exchange for treating the pension as a lump sum rather than as a monthly benefit calculated by utilizing the Woodward formula. However, there is nothing on the face of the Stipulation to indicate that such an exchange was made. The Stipulation states that Jeffrey was granted an extra $45,000 of equity in the home because he had contributed inherited funds to the home, not in exchange for the retirement.
¶19 Even if the court had accepted Deidre’s argument, it is by no means clear that she gave up anything in exchange for the pension, let alone something of comparable value such that the court should have recognized the retirement division as inequitable. Presumably, Jeffrey would have contested Deidre’s assertion that the inheritance funds were comingled, and she has not established that she was equitably entitled to share in the portion of the equity gained by investing the inheritance funds. Further, her half of that portion of the equity was significantly smaller than the amount of the pension Jeffrey would be giving up by accepting half of the partial lump sum value rather than half of the monthly payments. Additionally, Deidre herself asserted only that her belief regarding the pension made her “a little more flexible” on the issue of the allegedly comingled inheritance, not that she bargained for an exchange of one for the other.
¶20 To require the district court to examine and evaluate the Stipulation to the degree recommended by Deidre would be to undermine the parties’ right to contract freely. While courts should ensure that the provisions of a divorce stipulation comply with “the overarching principle of equity,” Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043, they are also to “respect[] and give[] considerable weight” to the parties’ agreement, Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Thus, weighing every provision of a stipulation against every other to ensure that the parties have reached a perfectly fair agreement is beyond the scope of the court’s mandate.
¶21 Indeed, the court’s equity analysis generally focuses “not on the contract’s subject matter, but rather on whether the contract was fairly negotiated and does not result in an outcome so severely one sided that it prevents the district court from fulfilling its equitable obligations.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. We see nothing in the record to suggest that the district court was presented with such a situation. Both parties were represented by counsel, and the terms of the Stipulation were not so one-sided as to give the court reason to believe that the parties’ agreement had violated the principles of equity. Thus, the court did not exceed its discretion in determining that the Stipulation’s division of the retirement funds was enforceable.
B. Deidre’s Arguments Regarding Alimony and Vehicles Were Not Preserved for Appeal.
¶22 On appeal, Deidre renews the arguments made in her motion to set aside that there was no meeting of the minds with respect to the Stipulation’s provisions regarding alimony and the division of equity in the vehicles. However, the district court made no ruling on these issues.[6]
¶23 “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.” Id. (emphasis added).
¶24 We agree with Jeffrey that Deidre’s reference to the alimony and vehicle issues in her motion to set aside was not sufficient to preserve them for appeal when she did not present evidence or argue these issues to the district court at the evidentiary hearing and the district court did not rule on them. “[T]he mere mention of an issue in the pleadings, when no supporting evidence or relevant legal authority is introduced at trial in support of the claim, is insufficient to raise an issue at trial and thus insufficient to preserve the issue for appeal.” LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991). Further, a party may waive an issue by relinquishing or abandoning it before the district court, either expressly or impliedly. State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443.
¶25 “The fundamental purpose of the preservation rule is to ensure that the district court had a chance to rule on an issue before an appellate court will address it.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63. Because the district court did not rule on the alimony and vehicle issues, and Deidre made no attempt to remedy that omission before raising the issues on appeal, her arguments regarding these issues are unpreserved, and we will not consider them for the first time on appeal. See Vandermeide v. Young, 2013 UT App 31, ¶¶ 8–9, 296 P.3d 787 (holding that a challenge to a district court’s failure to rule on an issue raised in the pleadings was not preserved for appeal, because the appellants did not object to the court’s findings or file a post-judgment motion requesting additional findings).
II. Deidre Will Have the Opportunity to Pursue Her Change of Circumstances Argument in the Context of a Petition to Modify.
¶26 Deidre also argues that the district court erred in declining to consider the change in her employment status as a basis for setting aside the Stipulation before a final order was entered. Although Deidre filed her motion to set aside prior to the entry of the final Decree of Divorce (the Decree), the court declined to consider whether the Stipulation should be modified based on a change of circumstances, stating, “[O]ur procedural rules contemplate that a petition to modify has to be made when the parties reached this state of the proceeding. The Parties reached a resolution in this case and new situations are handled differently.”
¶27 The district court has the discretion to reconsider a prior ruling any time before a final judgment is entered. See Utah R. Civ. P. 54(b); see also Hafen v. Scholes, 2014 UT App 208, ¶ 3, 335 P.3d 396 (per curiam); Durah v. Baksh, 2011 UT App 159, ¶ 5, 257 P.3d 458 (per curiam). However, to seek a modification of a divorce decree, a movant must show “a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Gardner v. Gardner, 2012 UT App 374, ¶ 38, 294 P.3d 600 (emphasis added) (quotation simplified).
¶28 The change in Deidre’s employment status occurred after the Stipulation was signed but before the Decree was entered. Thus, Deidre asserts that the district court’s refusal to reconsider the alimony portion of the Stipulation as part of her motion to set aside was an abuse of discretion because it put her in a catch-22—the court would not let her seek a modification prior to the entry of the Decree, but she would be precluded from seeking one afterward because her alleged change in circumstances occurred before the entry of the Decree.
¶29 We agree with Deidre that the district court, contrary to its own assertion, had the discretion to reconsider whether to accept the parties’ Stipulation as to alimony prior to the entry of the Decree, since the alleged change in circumstances occurred prior to a final judgment being entered. This issue was relevant to the court’s consideration of whether the Stipulation complied with the “overarching principle of equity.” See Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043. The court may have determined that the Stipulation as to alimony was no longer equitable in light of the change in circumstances and that the parties would not have entered into the Stipulation as to alimony had they been aware that Deidre would lose her employment.
¶30 However, while considering Deidre’s alleged substantial change of circumstances at an earlier stage of the proceedings may have been desirable as a matter of judicial economy, Deidre has not been prejudiced by the district court’s refusal to do so. Deidre filed a Petition to Modify on January 9, 2018, which is currently pending in the district court. The district court gave Deidre leave to pursue her substantial change of circumstances argument subsequent to the entry of the Decree, and Jeffrey has conceded that she should be allowed to do so. These circumstances avoid the catch-22 scenario Deidre feared. Because Deidre has not actually been precluded from raising her substantial change of circumstances claim, any error on the part of the district court in declining to consider her motion to set aside the alimony portions of the Stipulation on that basis was harmless.
CONCLUSION
¶31 The district court’s interpretation of the Stipulation’s retirement provisions is supported by the evidence presented at the evidentiary hearing. Deidre’s arguments concerning other aspects of the Stipulation were not preserved, and we therefore do not consider them. Further, while the district court could have considered Deidre’s arguments concerning her alleged change in circumstances in the context of the motion to set the Stipulation aside, the court’s refusal to do so was not prejudicial. Deidre will be permitted to pursue her claim in the context of the petition to modify already filed with the district court. Accordingly, we affirm the district court’s denial of Deidre’s motion to set aside the Stipulation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
———————————————————–
[1] Because the parties share the same last name, we refer to them by their first names to avoid confusion, meaning no disrespect by the apparent informality.
[2] Deidre also challenged other provisions of the Stipulation that she asserted were inartfully drafted. Specifically, she claimed that there was a mathematical error in the calculation of the vehicle equity and that a lack of language regarding the parties’ incomes and needs in the alimony provision had the potential to preclude a future modification. However, she did not present argument or evidence on these issues at the evidentiary hearing, and the district court ultimately made no ruling on them. See infra ¶¶ 22–25.
[3] Deidre also asserts that the district court erred in determining that the Stipulation was unambiguous. Although the court stated that it considered the Stipulation’s language to be “clear,” it did not make an explicit ruling regarding whether the Stipulation was ambiguous. In fact, the district court’s consideration of extrinsic evidence suggests that the court actually did consider the Stipulation to be ambiguous, since the purpose of considering extrinsic evidence is to clarify ambiguous terms in the contract. See Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995) (explaining that if a court determines that a contract is ambiguous, the next step is to admit extrinsic evidence “to clarify the ambiguous terms”). We therefore review only the district court’s evaluation of the extrinsic evidence and its determination that Jeffrey’s interpretation of the Stipulation was more reasonable, that there was a meeting of the minds regarding how the retirement was to be divided, and that the
Stipulation was enforceable.
[4] The Woodward formula grants a spouse one-half of the “portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the [acquiring spouse’s] employment.” Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982).
[5] Incidentally, the fact that the parties listed only the “approximate” values of the various retirement funds also undermines Deidre’s assertion that the parties intended to effectuate the division based on the listed values rather than the actual values of the funds.
[6] Deidre asserts that the court’s ruling that “[i]n order to have a contract, the Court doesn’t need perfect clarity on every factual point” constituted a ruling on all the issues she raised. However, Deidre omits vital language from the court’s ruling. The court actually stated, “In order to have a contract, the Court doesn’t need perfect clarity on every factual point that might fill in a QDRO here.” (Emphasis added.) Thus, it is clear from the context that the court’s ruling contemplated only the issues Deidre raised with respect to the retirement, not the alimony and vehicle issues.
JULIE ANN DOLE,
Appellee,
v.
CHRISTOPHER PATTON DOLE,
Appellant.
Opinion
No. 20160702-CA
Filed October 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 124905567
Jay L. Kessler, Attorney for Appellant
Michelle L. Christensen and Dillon P. Olson, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTINSEN FORSTER and RYAN M. HARRIS concurred.
POHLMAN, Judge:
§1 Christopher Parron Dole and Julie Ann Dole divorced through a bifurcated decree and reserved several disputed issues for trial, including property division and child support. Following trial, the district court orally ruled on the outstanding issues, and entered its written findings and conclusions with the final decree. Christopher appeals the court’s rulings with respect to income imputation, tax exemptions, and personal and real property divisions.[1] He also appeals the court’s denial of his post-trial motion seeking rulings on issues he claims were left unresolved. We affirm in part and dismiss the remainder of the appeal for lack of jurisdiction.
ANALYSIS
I. Findings and Conclusions
§2 Christopher first argues that the district court erred in a variety of ways in rendering its final findings and conclusions of law. In particular, he challenges the court’s decisions to (A) impute income to him, (B) award Julie the annual tax exemptions for their two children until they reach the age of majority, and (C) divide the personal and real property as it did.
§3 We review challenges to factual findings for clear error, reversing only if the findings “are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” Kidd v. Kidd, 2014 UT App 26, ¶ 13, 321 P.3d 200 (quotation simplified). We review the court’s interpretation of relevant statutes for correctness. Dahl v. Dahl, 2015 UT 79, ¶ 155. Finally, to the extent Christopher challenges the adequacy of the court’s findings and whether they support its ultimate conclusions, we review that issue for correctness. Shuman v. Shuman, 2017 UT App 192, ¶ 2, 406 P.3d 258. The court must support its decisions “with adequate findings and conclusions,” which include enough detail and subsidiary facts “to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Kidd, 2014 UT App 26, ¶ 13 (quotations simplified); see also Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (“Findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.”). In this regard, “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Fish, 2016 UT App 125, ¶ 22 (quotation simplified).
§4 We address each of Christopher’s contentions below and affirm.
A. Income Imputation
§5 Christopher argues that the district court erred in imputing $55,000 annual income to him for purposes of calculating child support. In particular, he contends that the court failed to perform the income imputation test outlined in Utah Code section 78B-12-203(7)(b). Christopher claims that the court’s findings do not reflect consideration of his historical income or his employment capacity and earning potential, and that the court’s decision is therefore insufficiently supported.[2] He also contends that the court improperly disregarded evidence of his disabilities. We disagree.
§6 “Because trial courts have broad discretion to award child support, we will not disturb such decisions absent an abuse of discretion.” Reller v. Argenziano, 2015 UT App 241, ¶ 15, 360 P.3d 768 (quotation simplified). “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified).
§7 At the time of trial, section 78B-12-203(7)(b) provided,
If income is imputed to a parent, the income shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.
Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis 2012). For purposes of calculating child support, the district court imputed $55,000 of annual income to Christopher. It arrived at this figure by relying on a vocational expert’s opinion and the domestic relations commissioner’s findings regarding income. In doing so, the court stated that “[t]he actual income of [Christopher] is impossible to determine” due to Christopher’s “dishonesty to this Court, to his unaccountable income, [and to] his failure and refusal to obtain traditional employment.” Indeed, the court noted that “much of the income that [Christopher] derives through his purchase and sale of [equipment] is unaccountable.”
§8 Contrary to Christopher’s assertions, the court clearly stated in its oral and written findings that it based its imputation in part on the vocational expert’s opinion, which addressed the section 78B-12-203(7)(b) factors. This is sufficient to support the court’s imputation decision. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 65–71, 402 P.3d 219 (explaining that we may affirm a district court’s imputation determination if “we can infer the necessary findings from the vocational expert’s report and testimony,” and affirming the court’s imputation finding where “the expert’s report addresse[d] all of the factors required by section 78B-12-203(7)(b)”). The vocational expert’s trial testimony and report included information regarding Christopher’s nearly twenty-year work history, his employment capacity, and his earning potential in light of his education and experience. Thus, the expert’s report and testimony make clear that the district court considered the relevant statutory factors. See id.
§9 Christopher also faults the court for disregarding his disabilities in rendering its imputation decision. But a court is not required to “render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. Even if a court “fails to make findings” about what an appellant considers to be “a material issue, we assume the court found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it.” See Widdison v. Widdison, 2014 UT App 233, ¶ 6, 336 P.3d 1106 (quotation simplified).
§10 Here, to the extent that information about Christopher’s disabilities was relevant to the court’s imputation analysis, see generally Utah Code Ann. § 78B-12-203(7)(d) (providing that income may not be imputed if “a parent is physically or mentally unable to earn minimum wage” and that condition “is not of a temporary nature”), that evidence was presented during trial and specifically discussed during the vocational expert’s testimony, see Vanderzon, 2017 UT App 150, ¶¶ 65–71. And other than flatly asserting that the court disregarded that evidence, Christopher provides no legal or factual basis from which we may presume that the court did not consider the evidence about his disabilities in imputing income to him. See Utah R. App. P. 24(a)(8) (setting out the appellant’s briefing requirements, which includes providing “reasoned analysis supported by citations to legal authority and the record” to explain why the appellant “should prevail on appeal”). See generally Gerwe v. Gerwe, 2018 UT App 75, ¶ 13, 424 P.3d 1113 (“A reviewing court will not
§11 Accordingly, Christopher has failed to demonstrate error in the court’s imputation decision.
B.Tax Exemptions
§12 Christopher next argues that the court erred in awarding Julie the annual tax exemptions for both of their children through the age of majority. We generally review a district court’s decision to award tax exemptions for abuse of discretion. See Hill v. Hill, 869 P.2d 963, 967 (Utah Ct. App. 1994).
§13 Tax exemption awards are governed by Utah Code section 78B-12-217, which provides:
No presumption exists as to which parent should be awarded the right to claim a child or children as exemptions for federal and state income tax purposes. Unless the parties otherwise stipulate in writing, the court . . . shall award in any final order the exemption on a case-by-case basis.
In awarding the exemption, the court… shall consider (a) as the primary factor, the relative contribution of each parent to the cost of raising the child; and (b) among other factors, the relative tax benefit to each parent.
Notwithstanding Subsection (2), the court… may not award any exemption to the noncustodial parent if that parent is not current in his child support obligation, in which case the court . . . may award an exemption to the custodial parent.
An exemption may not be awarded to a parent unless the award will result in a tax benefit to that parent.
Here, the court awarded Julie the annual tax exemptions for both children for two reasons. First, it determined that Julie bore “the bulk of the expenses of the children.” Second, it determined that, given that Julie earned more than twice Christopher’s income at the time of trial, the tax advantages would work in both parties’ favor if Julie claimed the exemptions because of their respective tax rates.
§14 Christopher argues that the court erred because the statute should be interpreted to mean that exemptions should be awarded “exclusively to a party [only] when the other party gives very little or nothing to the custodial parent in the way of child support or other financial benefits,” which he contends are not the circumstances in this case. On this basis, he claims that the annual exemptions should have been split and that he was entitled to one of the two exemptions.
§15 Christopher’s argument requires us to construe the tax exemption statute. The “primary objective of statutory interpretation is to ascertain the intent of the legislature,” and “the best evidence of the legislature’s intent is the plain language of the statute itself.” See Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (quotations simplified). We therefore “look first to the plain language of the statute,” presuming that “the legislature used each word advisedly,” and “when we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end.” Id. (quotations simplified).
§16 The plain language of section 78B-12-217 does not support Christopher’s proposed interpretation or application. Rather than dictate circumstances through which a parent may gain entitlement to an exemption, section 78B-12-217 instructs that “[n]o presumption” governs the award of tax exemptions and that, instead, they must be awarded “on a case-by-case basis.” Utah Code Ann. § 78B-12-217(1) (LexisNexis 2012). In this regard, courts are instructed to consider relevant factors, including two in particular: “as the primary factor, the relative contribution of each parent to the cost of raising the child”; and, next, “the relative tax benefit to each parent.” Id. § 78B-12-217(2). But the statute does not instruct the court to treat the factors as vesting requirements toward a parent’s entitlement to an exemption— that, for example, a parent becomes entitled to an exemption if he or she pays child support and may enjoy some tax benefit. Indeed, while the statute provides that a noncustodial parent may not be awarded an exemption if he or she is not current as to any child support obligation or will not enjoy a tax benefit, see id. § 78B-12-217(3)–(4), the statute does not provide for the inverse—that when a noncustodial parent is current on his or her child support obligation or may enjoy a tax benefit, he or she is always entitled to an award of a tax exemption. Thus, the plain language of the statute leaves the awarding of exemptions squarely in the sound discretion of the district court and its assessment of the unique circumstances of each case.
§17 In this case, the district court appropriately followed the statute in rendering its decision. As required, it specifically considered each party’s relative contributions to the cost of raising their children and the relative tax benefits to each. Because it determined that Julie bears “the bulk of the expenses of the children” and that the tax advantages to both parents are more favorable if Julie claimed both children on her taxes, it awarded both exemptions to Julie. We can discern no abuse of discretion in its decision, under these circumstances, to award them both to Julie.
§18 Still, Christopher disagrees with the court’s assessment of the evidence. He asserts that the court failed to consider the monetary support he provides to raise the children and that he would receive a “very good tax benefit if allowed to take an exemption.” He argues that both his financial contributions and the tax benefit he could receive “should have been sufficient to be awarded one of the child tax exemptions.” But Christopher has not pointed to anything in the record suggesting that the court failed to consider his monetary support in rendering its decision. See generally Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (stating that a district court is “not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling”). And given that the court rendered specific orders in its ruling regarding Christopher’s various financial obligations for raising the children—such as for child support, insurance premiums, unpaid medical costs, and counseling fees—it is unreasonable to infer that the court then failed to consider Christopher’s financial contributions to support the children in rendering its tax exemption decision.
§19 Further, although Christopher appears to challenge the court’s evaluation of the tax benefit he might receive if awarded an exemption, he has failed to challenge the court’s finding that the tax advantages are more favorable to both parties if Julie received both of the exemptions. See id. ¶ 8 (“Parties challenging factual findings cannot persuasively carry their burden . . . by simply listing or rehashing the evidence and arguments they presented during trial or by merely pointing to evidence that might have supported findings more favorable to them . . . .” (quotation simplified)); Taft v. Taft, 2016 UT App 135, ¶ 43, 379 P.3d 890 (explaining that an appellant cannot prevail when challenging a district court’s resolution of a factual issue by “merely pointing to evidence that might have supported findings more favorable to [the appellant]”). His claim that he would receive a “very good” tax benefit if awarded an exemption is therefore inapposite.
§20 Accordingly, we affirm the district court’s decision to award Julie the tax exemptions for both children until they reach the age of majority.
C. Property Division
§21 Christopher attacks several of the court’s property distribution decisions. “Trial courts have considerable discretion in determining property distribution in divorce cases, and their decisions will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Donnelly v. Donnelly, 2013 UT App 84, ¶ 13, 301 P.3d 6 (quotation simplified). “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.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified).
§22 Christopher challenges the court’s decisions to (1) afford Julie discretion to determine what funds she will use to give Christopher his share of her retirement account; (2) allow Julie to stay in the marital home rather than ordering all four of the parties’ real properties sold; (3) award Julie the majority of the marital personal property; and (4) award Julie half of certain business inventory, which he claims amounted to his “only means of income.” We address each challenge below.
1. Retirement Account
§23 Christopher argues that the court exceeded its discretion in setting the terms of Julie’s retirement account division. The court awarded Christopher half of Julie’s retirement account and provided that Julie would have the “sole discretion” to decide “whether or not that amount comes from her retirement account or whether it comes from the other amounts awarded in this ruling.” Christopher contends that it was an abuse of discretion to permit Julie the “sole discretion” to decide from which funds to pay Christopher his portion of her retirement account. He claims that, because the parties “have been so acrimonious throughout this divorce process, giving [Julie] discretion as to how or when [Christopher] receives his portion of the retirement is tantamount to his never receiving it.”
§24 Christopher relies on the contentious nature of the divorce to claim error in the court’s decision, but he has provided no reasoned analysis to suggest that it is an abuse of discretion to allow one of the parties in an acrimonious divorce the discretion to determine the source of funds to pay the other party his or her half of a retirement account. See Roberts v. Roberts, 2014 UT App 211, ¶ 36, 335 P.3d 378 (affirming the trial court’s adjustment of the financial interests of the parties in a divorce action where the husband offered “little analysis” to support his argument that the court’s adjustment was an abuse of discretion and where the husband did not “point to any evidence in the record to support [his] assertions” or direct the reviewing court “to any authority that is inconsistent with the trial court’s analysis”). For example, Christopher does not explain why the acrimonious nature of the divorce necessarily renders his retirement account award illusory, nor does he cite any evidence in the record suggesting that Julie has exercised her discretion, or intends to exercise her discretion, in a manner that will result in him not receiving his awarded portion.[3]See id. Thus, we conclude that Christopher has not demonstrated that no reasonable person would afford Julie the discretion to determine from which funds she will pay Christopher his share of her retirement account.
2. The Parties’ Real Properties
§25 Christopher argues that the district court erred by not ordering that all of the parties’ four properties – particularly, the marital home – be sold. He claims that “the only real way to obtain the true value of the marital home was to sell it” and that, because the court did not order the parties to sell each of the four properties, he has not received his equitable share of the properties’ true values.[4]
§26 The district court decided that each party was entitled to reside in one of the parties’ properties and that the other two properties should be sold. As to the marital home, the court determined that Julie could stay in the marital home with the children and that Christopher would be entitled to one-half of the equity in the home, less amounts of liens, encumbrances, and the costs of repairs and improvements. For Christopher, Julie was entitled to half of the equity in the property he resided in, subject to the same deductions.
§27 Although Christopher disagrees with the court’s decision to allow Julie to stay in the marital home with the children, Christopher has not shown that “no reasonable person” would have awarded Julie the marital home and permitted her to live in it with the children rather than sell it. Gerwe v. Gerwe, 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified). While the district court perhaps could have ordered all of the properties sold, including the marital home, Christopher has not demonstrated that it was an abuse of the court’s discretion not to do so under the circumstances. Indeed, the case Christopher primarily relies on to make his argument—Baker v. Baker, 866 P.2d 540 (Utah Ct. App. 1993)—does not stand for the proposition that a court exceeds its discretion in declining to order the sale of the marital home. Rather, in Baker we merely affirmed the district court’s decision that, in the totality of the circumstances in play in that case, ordering the sale of the marital home was equitable and within the court’s discretion. Id. at 544. And Christopher cannot otherwise prevail on appeal simply by arguing that he believes the court should have exercised its discretion to reach the determination he would have preferred. See Gerwe, 2018 UT App 75, ¶ 17; Shuman v. Shuman, 2017 UT App 192, ¶ 8, 406 P.3d 258 (“Parties challenging factual findings cannot persuasively carry their burden . . . by simply listing or rehashing the evidence and arguments they presented during trial or by merely pointing to evidence that might have supported findings more favorable to them . . . .” (quotation simplified)). Thus, we affirm the court’s decision to award Julie the marital home and allow her to stay in it rather than sell it.
3. Personal Property
§28 Christopher argues that the district court “erred by giving [Julie] almost all of the marital personal property” because the division was inequitable.[5] Christopher contends that he was “clearly… shortchanged” by the court’s order and that he should “either receive one-half of the personal property [Julie has] or an offset therein.” He states that he believes that Julie “has almost all of the personal property.” But Christopher has failed to demonstrate that the court’s property division was improper.
§29 The district court awarded each party the personal “property currently in their possession.” In doing so, the court provided that either party could claim property in the other party’s possession that “is uniquely theirs” if they did so within thirty days of the court’s ruling. The court also generally invited the parties to submit a motion for reconsideration on issues they felt were incorrect, so long as they did so within fourteen days of the court’s ruling. Otherwise, there would be “no award or offset for personal property, other than [what was] designated” in the court’s ruling.
§30 Christopher never filed a request for his unique personal property after the court’s order was entered. Instead, Christopher’s assertion of error on appeal relies on only his “belie[f]” that Julie “has almost all of the personal property.” But assertions of error based on speculation or individual belief are not sufficient to overcome the presumption that the court’s personal property award was proper. See Andersen v. Andersen, 2016 UT App 182, ¶ 17, 379 P.3d 933 (explaining that “we afford the trial court considerable latitude in adjusting financial and property interests, and its actions are entitled to a presumption of validity” (quotation simplified)). Christopher has provided no citation to record evidence demonstrating that at the time of the court’s ruling Julie had “almost all” of the personal property in her possession. And although Christopher submitted a list of personal property to the court and generally requested that the court divide the personal property equitably, Christopher’s list did not indicate the value of each item or indicate which specific items were in either party’s possession.
§31 Moreover, the marital personal property was only one part of the court’s overall adjustment of the parties’ property and financial interests, and Christopher has not shown that the court’s decision to award the parties the personal property in their possession was inequitable in light of the court’s division of the marital property and assets in its totality. See Goggin v. Goggin, 2013 UT 16, ¶ 48, 299 P.3d 1079 (explaining that “the appropriate distribution of property varies from case to case, and the overriding consideration is that the ultimate division be equitable—that property be fairly divided between the parties, given their contributions during the marriage and their circumstances at the time of the divorce” (quotation simplified)); Shuman, 2017 UT App 192, ¶ 18 (concluding that the husband had inadequately briefed his argument that the court’s division of the parties’ debt was inequitable where he failed to “address the broader picture of the parties’ relative circumstances to demonstrate that, given the overall distribution of assets and debts and the parties’ relative incomes and expenses, etc.,” the court’s ruling was improper).
§32 Thus, Christopher has not demonstrated that the court exceeded its discretion in awarding the parties the personal property in their possession at the time of its ruling.
4. Business Inventory
§33 Christopher contends the district court erred in determining that certain business inventory, which the court valued at $30,000, was marital property subject to division and in awarding Julie half its value. He generally complains that the court’s decision is inequitable by failing to hold Julie to “the same standard,” given that the court did not require Julie to divide with Christopher income she earned during the marriage. He asserts that the court instead should have characterized the equipment as his “income” and suggests the court therefore should have awarded all of it to him as his separate property.[6]
§34 In treating the inventory as marital property and thus awarding Julie half its value, the district court determined that Christopher was “dishonest in his testimony about his dealing with the property that was both marital property and non-marital property” and, as to this particular $30,000 inventory, that Christopher had “falsely claim[ed] [the equipment] had previously been sold.” The court then found that Julie was entitled to a $15,000 credit or offset for it.[7]
§35 Christopher has not shown that the court’s findings relating to the business inventory are clearly erroneous. See generally Dahl v. Dahl, 2015 UT 79, ¶ 182 (explaining that “conclusory allegations are insufficient to overcome our highly deferential review of the district court’s findings of fact”). And he has not otherwise shown that “no reasonable person” would have deemed the equipment to be marital property and awarded Julie half its value in light of the court’s broad discretion to adjust and divide marital property in divorce as well as the presumption that property acquired during a marriage is marital property to be divided equally. See Gerwe v. Gerwe, 2018 UT App 75, ¶ 17, 424 P.3d 1113 (quotation simplified); see also Dahl, 2015 UT 79, ¶ 119 (explaining the court’s “considerable discretion” to divide marital property); id. ¶ 26 (“Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution.”); Olsen v. Olsen, 2007 UT App 296, ¶ 23, 169 P.3d 765 (stating that “[i]n Utah, marital property is ordinarily divided equally between the divorcing spouses”). Further, his argument does not address the overall distribution of the parties’ property and financial interests, and Christopher fails to show why the court’s disposition of the business inventory compared to Julie’s income is inequitable on the whole. See Shuman v. Shuman, 2017 UT App 192, ¶ 18, 406 P.3d 258. Accordingly, we will not set aside the district court’s division of the business inventory.
§36 In sum, we affirm the district court’s rulings regarding income imputation, tax exemptions, and the property division.
II. The Post-Trial Motion
§37 Christopher next argues that the district court exceeded its discretion when it denied his post-trial motion, which sought modification of the findings and judgment. See Utah R. Civ. P. 52(b) (“Upon motion of a party filed no later than 28 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly.”). In particular, he requested the court make findings and rule on the following: (1) the division of marital pictures; (2) the division of $2,000 that was in a joint bank account; (3) an offset in Christopher’s favor for approximately $8,200 of business equipment Julie auctioned; (4) rental offsets of the parties’ rental homes; and (5) division of other of Julie’s retirement benefits. Christopher also asked the court to address its findings in support of its order requiring Christopher to pay $610 for window repair at the marital home. Christopher argued that $610 represented the cost to repair two windows while the decree suggests the court held him responsible for the cost of replacing a single “broken window.”
§38 In July 2016,[8] Christopher filed his post-trial motion. On October 13, 2016—after Christopher filed his notice of appeal—the court denied the motion, in part because the court had already “resolved the issues raised by [Christopher].” Thereafter, Christopher did not file a new or amended notice of appeal.
§39 A notice of appeal generally must be filed “within 30 days after the date of entry of the judgment or order appealed from.” Utah R. App. P. 4(a). If a party files a notice of appeal after entry of judgment but before entry of an order disposing of certain kinds of motions, including a motion under rule 52(b) of the Utah Rules of Civil Procedure that is filed no later than twenty-eight days after the judgment is entered, the notice of appeal “is effective to appeal only from the underlying judgment.” Id. R. 4(b)(2). In those circumstances, to appeal from the post-judgment order disposing of a rule 52(b) motion, “a party must file . . . an amended notice of appeal.” Id.
40 Christopher filed his notice of appeal after the district court entered the final decree court entered the final decree but before the court ruled on his post-trial motion. Because he did not file a new or amended notice of appeal after the court issued its order disposing of his motion, Christopher’s notice of appeal is “effective to appeal only from the underlying judgment.” See id. (explaining that to appeal from a final order disposing of a rule 52(b) motion, “a party must file a notice of appeal or an amended notice of appeal”). As a result, we lack jurisdiction to consider his arguments related to his post-trial motion.[9]See Dennett v. Ferber, 2013 UT App 209, ¶ 4, 309 P.3d 313 (per curiam) (concluding that because the appellant did not file a new or amended notice of appeal after the entry of the order resolving a similar post-trial motion, this court “lack[ed] jurisdiction to resolve any issues raised by” the appellant in the post-trial motion).
CONCLUSION
§41 We affirm the district court’s rulings with respect to income imputation, tax exemptions, and personal and real property divisions. We dismiss for lack of jurisdiction Christopher’s appeal to the extent he challenges the district court’s denial of his post-trial motion.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] Because the parties share a surname, we refer to them here by their first names, with no disrespect intended by the apparent informality. See, e.g., Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
[2] Christopher also claims that the court failed to determine whether he was voluntarily unemployed or underemployed, which he asserts it was required to do. However, this court has already rejected the legal assertion on which his argument depends. See, e.g., Reller v. Argenziano, 2015 UT App 241, ¶¶ 32– 33, 360 P.3d 768. That rejection stands.
[3] In this regard, Christopher concedes on appeal that there is “much still to be determined between the parties as to what is owed each party” regarding the property division, given that the parties are still in the process of selling their several homes, which seems to support the court’s decision to vest Julie with this discretion.
[4] Christopher also argues that the court erred in relying on Julie’s appraisal for the marital home, which he claims undervalued it. However, Christopher concedes that the court’s reliance on Julie’s appraisal was apparently done in a June 2017 proceeding, nearly one year after the court entered its final decree. Christopher filed his notice of appeal before that time, and he has not shown where this issue was preserved or that it falls within the scope of our jurisdiction. We therefore do not consider whether the court’s decision to rely on Julie’s appraisal to value the marital home was proper.
[5] At trial, Christopher offered a list of the marital personal property. While the list he offered did not include a value of the marital personal property, he contended that, except for jewelry and collector cards, the value of the marital personal property was around $10,000.
[6] Christopher’s plea for equality suggests that the court treated income Julie earned during the marriage as her separate property. But Christopher identifies nothing in the record to validate that suggestion.
[7] Christopher claims that the ruling is vague regarding whether the district court awarded Julie half of the inventory’s value because it designated the inventory as marital property or because it did so to sanction Christopher for his dishonesty. We disagree. There is no mention of sanctions in the court’s findings; rather, they indicate that the court found incredible Christopher’s contention that this inventory was not part of the marital estate because it had been sold. We therefore construe the court’s findings regarding Christopher’s dishonesty as on-the-record credibility determinations related to its assessment of whether the equipment was part of the marital estate, rather than findings to support imposing a sanction.
[8] Although Christopher filed an objection to Julie’s proposed decree on June 13, 2016, he did not include the allegedly pending issues as a basis for an objection.
[9] Christopher includes his challenge to the court’s ruling regarding the broken windows in the section of his brief dedicated to the issues we resolve in Part I. But Christopher’s challenge is primarily directed toward the adequacy of the court’s findings—an issue he raised in his post-trial motion. See generally In re K.F., 2009 UT 4, ¶¶ 61–63, 201 P.3d 985 (requiring appellants to “object to the adequacy of the detail of the trial court’s findings before appeal” and to present the issue to the trial court “in such a way that the trial court has an opportunity to rule on that issue” (quotation simplified)). For the reasons stated above, we do not have jurisdiction to consider this challenge. To the extent Christopher contends there was insufficient evidence to hold him responsible for the cost to repair two windows, we would have jurisdiction over that challenge, but we reject his argument. Christopher testified that he broke a large picture window when he slipped off a toolbox while trying to gain access to the house. Julie testified that the basement window underneath the picture window was broken at the same time. The parties’ testimony, and the reasonable inferences drawn therefrom, provided sufficient evidence to support the district court’s ruling. See generally Choate v. ARS-Fresno LLC, 2016 UT App 249, ¶ 8, 391 P.3d 344 (explaining that an appellate court “will not overturn a verdict on a challenge to the sufficiency of the evidence so long as some evidence and reasonable inferences support” the fact-finder’s findings (quotation simplified)).
What kind of lawyer handles disputes regarding disbursement of pension for a divorced couple? When the amount being paid out to the spouse is more than the amount agreed to in the divorce?
What kind of lawyer handles disputes regarding disbursement of pension for a divorced couple? When the amount being paid out to the spouse is more than the amount agreed to in the divorce?: a divorce lawyer, working with a financial planner, is likely all that most people would ever need.
Utah Family Law, LC | divorceutah.com | 801-466-9277