AMY R. MYERS, Appellee, v. JACOB W. MYERS, Appellant.
Opinion
No. 20220002-CA
Filed March 2, 2023
Sixth District Court, Richfield Department
The Honorable Brody L. Keisel
No. 184600056
Benjamin L. Wilson, Attorney for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
HARRIS, Judge:
¶1 After more than two decades of marriage, Jacob and Amy Myers divorced in 2018, and mutually agreed to the terms of their divorce. In particular, they agreed that Jacob[1] would pay Amy $916 per month in child support and $2,300 per month in alimony. Less than two years later, Jacob filed a petition to modify the divorce decree, asserting that both his and Amy’s income had changed since the divorce. The district court, after holding a trial, denied Jacob’s petition to modify, and Jacob appeals that denial, asserting that the court erred in determining that Amy’s ability to earn had not changed and in failing to make findings regarding Amy’s reasonable expenses. We find merit in Jacob’s positions, and therefore reverse and remand.
BACKGROUND
¶2 Jacob and Amy Myers married in 1995, but divorced in 2018 after some twenty-three years of marriage. When they divorced, one of their children (born in 2001) was still a minor, but all their children are now adults. Throughout most of their marriage, Jacob worked in oil production as a rig manager. His position paid relatively well—at the time of the divorce, he was earning $8,233 per month—but required him to work a nontraditional schedule (two weeks on, two weeks off), and in addition the job was sometimes dangerous and often involved the operation of heavy machinery.
¶3 While Jacob worked in the oil fields, the couple decided that Amy would—at least until the children were grown—forgo steady employment outside the home in order to care for the children. Amy did, however, run a small “foot zoning” business from which she earned approximately $250 per month.
¶4 In April 2018, Amy filed for divorce, citing irreconcilable differences. Jacob did not contest Amy’s petition; instead, the parties—neither of which were, at the time, represented by counsel—filed a joint stipulation, using forms provided by the court’s self-help center, agreeing to resolve all matters related to the divorce petition. As amended, the stipulation provided that Jacob would pay Amy $916 per month in child support—at least for another year or two until the parties’ youngest child reached the age of majority—and $2,300 per month in alimony. Jacob’s obligation to pay alimony was to last twenty-three years—until April 2041—unless Amy remarried or cohabited before that.
¶5 In the stipulation, the parties agreed that Jacob’s income was $8,233 per month, and that Amy’s income was $250 per month, and those figures were apparently used to calculate Jacob’s child support obligation according to applicable guidelines. But the stipulation contained no indication of how Jacob’s alimony obligation was calculated; in particular, the stipulation was silent as to what Amy’s reasonable monthly expenses might be.
¶6 Using court-approved forms, the parties incorporated the terms of their stipulation into proposed findings of fact and conclusions of law, as well as a proposed divorce decree, and the district court signed the documents, thus finalizing the parties’ divorce, in May 2018. The final documents, like the parties’ amended stipulation, provided that Jacob would pay $916 per month in child support and $2,300 per month in alimony, but contained no findings about Amy’s reasonable monthly expenses.
¶7 About eighteen months later, in November 2019, Jacob— now represented by an attorney—filed a petition to modify the alimony award contained in the decree. In the petition, Jacob alleged that “the income of both parties has significantly changed since their divorce was finalized.” With regard to his own income, Jacob alleged that he was “no longer working in the oil fields” because he was “no longer able to work the same work schedule and the same type of work because of how it was negatively affecting him.” He asserted that he was “going back to school” in an effort to begin a different career, and that he was “currently not working.” With regard to Amy’s income, Jacob alleged that Amy had become employed and earned $1,200 per month, and that her “self-employment income” had increased to $1,500 per month, such that Amy’s total monthly income was $2,700. Jacob alleged that the changes in the parties’ respective incomes constituted a “substantial change in circumstances that warrants a modification” of the alimony award.
¶8 Just a few weeks later, in January 2020, Amy—also now represented by an attorney—filed a motion for an order to show cause, asserting (among other things) that Jacob had failed to fully comply with his child support and alimony obligations. The court issued an order commanding Jacob to appear and show cause why he should not be held in contempt of court, and later held an evidentiary hearing to consider the matter. At that hearing, the court found that Jacob had “voluntarily quit his employment” in the oil fields and that, “if he hadn’t, he would have been able to pay what was ordered.” The court thus found Jacob in contempt and ordered him to pay Amy more than $22,000 in back child support and nearly $6,000 in unpaid alimony.
¶9 In the meantime, Jacob’s petition to modify remained pending, and the parties exchanged updated financial declarations in anticipation of an eventual trial. Amy’s first updated financial declaration, signed in December 2019, listed total annual income of nearly $11,000 (or about $889 per month) from three different sources: a new job, her foot zoning business, and teaching yoga classes. In this same declaration, Amy set forth monthly expenses of $4,084, with some of the expenses being at least partially attributable to her youngest child, who was still living in the home with Amy at that point. Then in August 2021, on the day of trial, Amy submitted a second updated financial declaration. According to this new declaration, Amy had recently obtained a different job, this one full-time, that paid her $45,000 per year ($3,750 per month). In addition, Amy stated that she earned $241 per month from her foot zoning business and $22 per week teaching yoga. She also asserted that her monthly expenses had increased to $4,795 (although the line-items listed in the declaration add to only $4,613), even though no children were living with her any longer. Among the changes from the 2019 declaration were a $500 increase in healthcare expenses, a $175 increase in real estate maintenance, a $100 increase in entertainment expenses, and an $88 increase in utilities.
¶10 In August 2021, the district court held a one-day bench trial to consider Jacob’s petition to modify. The only two witnesses to testify were Jacob and Amy. During his testimony, Jacob explained that he voluntarily left his position in the oil fields because he was no longer able to focus on his job duties to the degree he wanted, and he was worried that—due to the dangerous nature of the work—he would injure himself or someone else. However, he acknowledged, on cross-examination, that he was still physically able to perform the duties of the job; that his employer had not asked him to leave; that he had not received mental health counseling to address his concerns about the stress of his work; that he could have taken a leave of absence to address those issues and “gone back to” his job after that; and that if he had done so, he would still “be able to . . . pay the $2,300 a month in alimony.” He testified that, as of the time of trial, he was working at a home improvement warehouse earning $14 per hour, or $2,426 each month.
¶11 During her testimony, Amy testified that she had recently obtained full-time employment with the local chamber of commerce, in which she earned a salary of $3,750 per month. In response to direct questioning about this job, Amy conceded that she has “the ability to earn at least $3,750 a month,” and that she would be able to “do that moving forward.” In addition, she acknowledged that she earned additional income from her foot zoning business and her work as a yoga instructor. Amy testified that she earned some $100 per month from teaching yoga. With regard to her foot zoning business, she testified that she averaged ten treatments per month and charges $50 per treatment, and therefore earns $500 per month in revenue. But she testified that she must pay certain expenses associated with the business that eat up most of the revenue, resulting in her making only some $90 per year (or $7.50 per month) in profit. On cross-examination, she acknowledged that her total gross income from all sources, before expenses, was approximately $4,350 per month.
¶12 Amy testified that she was still living in the same house that the couple had been living in during the marriage, but that now—at the time of trial—she was living there alone because her children were grown and gone. With regard to expenses, she testified that her total monthly expenses were $4,084 in 2019 but had increased to $4,795 at the time of trial, despite the fact that, by the time of trial, she was living alone. She explained that new health insurance and home maintenance costs were largely responsible for the increase. But then, in response to a direct question about how her expenses at the time of the 2018 divorce compared to her expenses at the time of the 2021 modification trial, she testified that her expenses had “stayed the same.”
¶13 After trial, the parties (through counsel) submitted written closing arguments. Amy argued that, for purposes of the alimony computation, the court should impute to Jacob the same income he had made in the oil fields, find there to be no material and substantial change in circumstances, and on that basis dismiss the petition to modify. For his part, Jacob argued that the court should modify (or even terminate) his alimony obligation because Amy was now employed full-time and had the ability to provide for her own needs. In particular, Jacob argued that Amy’s reasonable expenses were in actuality less than the amounts reflected on her recent financial declaration and in her testimony, and that her increased income was sufficient to meet those needs.
¶14 A few weeks later, the district court issued a written ruling denying Jacob’s petition to modify. In its ruling, the court found that Jacob had voluntarily quit his job in the oil fields, and that his monthly income had decreased from $8,233 to $2,427. The court also found that Amy “currently works” for the local chamber of commerce “earning $45,000 annually,” and that Amy “also has side businesses doing foot treatments and teaching yoga.” But the court made no specific finding regarding Amy’s total income.
¶15 Building on these findings, the court concluded that Jacob’s change in income constituted “a substantial material change in circumstances that was not expressly stated in the decree.” The court did not separately analyze whether the change in Amy’s income also constituted such a change in circumstances.
¶16 Having concluded that there existed a substantial material change in circumstances, the court proceeded to “consider whether modification [of the alimony award] is appropriate.” The court began its analysis by examining Jacob’s income situation, and concluded that, because Jacob had left his job voluntarily and had not sustained any loss in earning capacity, Jacob “remains able to earn income at the level he was earning at the oil fields.” Accordingly, the court imputed to Jacob an income of $8,233 per month for purposes of the alimony calculation.
¶17 With regard to Amy’s expenses, the court found that her “financial needs . . . [have] not changed since” 2018, when “the stipulated decree was entered,” but made no specific finding as to the exact amount of those expenses.
¶18 And with respect to Amy’s earning capacity, the court offered its view that the “determinative factor[]” was not Amy’s income but, instead, her “ability to provide” for herself. On that score, the court found that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce,” and therefore concluded that—despite her increased income—her earning capacity had not changed. In so ruling, the court observed that it was Jacob’s “unilateral decision” to leave his job that compelled Amy to “obtain employment to provide for herself,” and stated that reducing Jacob’s alimony obligation where the precipitating event “was [Jacob’s] decision to leave his employment would set a precedent allowing parties who have stipulated to pay alimony to renege on that stipulation by taking a much lower paying job and forcing receiving parties to find additional employment by stopping alimony payments.”[2]
ISSUE AND STANDARDS OF REVIEW
¶19 Jacob now appeals the court’s denial of his petition to modify. In this context, “we review the district court’s underlying findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159, and we review its determination regarding the presence or absence of a substantial change of circumstances, as well as its ultimate determination regarding the petition to modify, for an abuse of discretion, see id.; see also Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The district court’s choice of, and application of, the appropriate legal standard, however, “presents an issue of law that we review for correctness.” Peeples, 2019 UT App 207, ¶ 11.
ANALYSIS
¶20 We begin our analysis with a general discussion of petitions to modify alimony awards and the process courts are to follow when adjudicating such petitions. We then address Jacob’s claim that the court failed to follow the correct process in this case.
I
¶21 After a district court has made an award of alimony, the court “retains continuing jurisdiction to” modify that award “when it finds that there has been a substantial material change in circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7, 405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-5(8)(i)(i) (2019).[3] If the court determines that no substantial material change in circumstances has occurred, then the court’s analysis ends, and the petition to modify the alimony award is properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d 431 (“As a threshold issue, before modifying an alimony award, the court must find a substantial material change in circumstances . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of a petition to modify on the ground that there existed no substantial material change in circumstances).
¶22 If, however, the court finds that a substantial material change in circumstances has occurred, the court must conduct a complete analysis regarding whether the alimony award remains appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that, once a finding of changed circumstances “has been made, the court must then consider” the alimony factors (emphasis added) (quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This analysis should include examination of the statutory alimony factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors commonly referred to as “the Jones factors,” see Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155, ¶ 7 (stating that, after finding that circumstances have changed, “the court must then consider at least the following factors in determining a new alimony award: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage” (quotation simplified)). “These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding.” Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103.
¶23 “Consideration of these factors is critical to achieving the purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14, 414 P.3d 1023, which are “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge,” Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “The core function of alimony is therefore economic— it should not operate as a penalty against the payor nor a reward to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378.
¶24 “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Id. (quotation simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand”). Because a recipient spouse’s demonstrated need constitutes an effective “ceiling” on an alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481, courts often begin their analysis by assessing whether recipient spouses are able to meet their reasonable needs through their own income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (stating that, in determining alimony, courts will generally “first assess the needs of the parties, in light of their marital standard of living” (quotation simplified)). If the recipient spouse is able to meet his or her own needs, then the analysis ends, and no award should be made, but if “the recipient spouse is not able to meet [his or] her own needs, then [the court] should assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” See id. (quotation simplified).
¶25 When considering the relevant alimony factors, courts are “required to make adequate factual findings on all material issues, unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Bukunowski v. Bukunowski, 2003 UT App 357, ¶ 9, 80 P.3d 153 (quotation simplified). When a district court fails to enter specific findings regarding “the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion.” Id. ¶ 10.
II
¶26 With these principles in mind, we turn our attention to Jacob’s assertion that the court failed to follow the correct process in adjudicating his petition to modify. In particular, Jacob asserts that the court—once it determined that there had been a substantial material change in circumstances—was required to conduct a complete analysis of all the alimony factors, and that it failed to properly do so.[4] We find merit in Jacob’s argument.
¶27 The district court started its analysis in the proper place, and assessed whether Jacob had demonstrated that there had been a substantial material change in circumstances that would justify reopening the alimony inquiry. Looking just at the change in Jacob’s own income, the court made a finding that there had been a “substantial change in circumstances.” And neither party takes issue with this finding on appeal; both appear to acknowledge the correctness of the court’s initial determination that circumstances affecting these parties had changed enough to justify a second look at the alimony situation.[5]
¶28 From there, though, the court’s analysis strayed from the proper path. After determining that the change in Jacob’s income constituted a substantial material change in circumstances, the court did not conduct a full analysis of the relevant alimony factors. With regard to Amy’s needs, the court’s analysis, in full, was simply this: “[Amyl testified that her monthly expenses have not increased from the time the parties were divorced in May 2018 until the time of trial in August of 2021.” The court made no finding that Amy’s testimony on that point was credible, see Rehn v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not merely restate the recipient spouse’s testimony regarding her monthly expenses.” (quotation simplified)), and did not make any effort to assess what Amy’s reasonable monthly needs actually were; the court’s comparison to the 2018 divorce decree is especially unhelpful, in context, because that decree contained no specific determination regarding Amy’s expenses.
¶29 With regard to the parties’ earning capacity, the court acknowledged that Amy had obtained a full-time job that paid her $3,750 each month, and that Amy “earns additional income from a foot zoning business and teaching yoga.” But the court made no finding as to what Amy’s total income actually was, stating that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce, only that her actual income has increased.”
¶30 And with regard to Jacob, the court found that he had voluntarily left his job in the oil fields, and that he “remains able to earn income at the level he was earning” before. On that basis, the court imputed to Jacob income of $8,233 per month, despite the fact that Jacob was no longer earning that amount. Jacob takes no issue with this imputation determination on appeal.
¶31 The court then completed its analysis by stating as follows: “[Amy’s] financial needs and both parties’ ability to earn has not changed since the time the stipulated decree was entered. Therefore, [Jacob’s] Petition to Modify the alimony ordered in the decree is DENIED.”
¶32 In our view, the court was, at least to some extent, conflating the “changed circumstances” part of the analysis with the “Jones factors” part of the analysis. Its first mistake was failing to make a specific finding regarding Amy’s reasonable monthly needs. As noted, no such finding had been made in connection with the 2018 decree, and Amy had submitted two conflicting financial declarations since then. In order to complete the multi-factor alimony analysis mandated by the court’s unchallenged conclusion that circumstances had materially changed, the court needed to make an actual finding regarding Amy’s expenses.[6]
¶33 The next error the court made was in determining that Amy’s earning capacity had not changed, even though her income had. And here, it is important to differentiate between situations in which a spouse’s income goes down from situations in which a spouse’s income goes up. Certainly, where a spouse’s income goes down, it does not necessarily follow—indeed, it often does not follow—that the spouse’s earning capacity has also gone down; in such situations, courts retain the discretion to determine that, even though a spouse’s income has gone down, his or her earning capacity has not been diminished, and to impute to the spouse— for instance, on the basis of a finding of voluntary underemployment—an income in line with the unchanged earning capacity. See, e.g., Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (stating that where parties “experience[] a temporary decrease in income, [their] historical earnings must be taken into account in determining the amount of alimony to be paid”); Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612 (noting that “a finding of voluntary underemployment is not a prerequisite to imputing income,” and affirming a trial court’s determination to assess the payor spouse’s income at a higher level than his current income because the current lower income was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism about a payor spouse’s sudden drop in income where the spouse “came into trial making a huge amount of money . . . and then all of a sudden is making no money because, you know, now it’s time to pay somebody” (quotation simplified)). Indeed, the district court made precisely such a finding with regard to Jacob, and no party takes issue with that finding here on appeal.
¶34 But the fact that a spouse’s income has gone up is very strong evidence that the spouse’s earning capacity has also risen. A party who is actually earning $45,000 per year will nearly always properly be deemed to have the capacity to earn at least that amount. There are, of course, exceptions: in some isolated instances, an increase in income is temporary and does not reflect an overall or long-term increase in earning capacity. See English v. English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties “experience[] unusual prosperity during one year,” that unusual income figure is not necessarily indicative of earning capacity); see also, e.g., Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247 (holding that a spouse’s earning capacity, moving forward, was not reflected by three “retroactive salary bonuses” that were not likely to occur in the future, and stating that, since the spouse’s “elevated salary during [the] period [in which he received those bonuses] is totally disproportionate to his actual earning capacity, his support obligation should reflect his earning capacity rather than his actual earnings”). But before concluding that a spouse’s earning capacity is less than the spouse’s actual income, a court should have evidence that the spouse’s higher income is truly ephemeral and not indicative of long-term earning capacity.
¶35 No such evidence is present here. Amy has obtained a full-time salaried position that pays her a steady income of $45,000 per year. There is no indication that this job is only temporarily available to her. The evidence was undisputed that Amy’s earning capacity, moving forward, has increased, as exemplified by her new job; indeed, she testified that she has “the ability to earn at least $3,750 a month” at that job, and that she would be able to “do that moving forward.” The district court’s observation that Amy had not “obtained extra education” in an effort to grow her earning capacity is true as far as it goes. But even in the absence of any extra education or training, a spouse’s earning capacity can rise, and a spouse’s ability to obtain and maintain a salaried job is an extremely strong piece of evidence so indicating.
¶36 We certainly take the court’s point that the reason Amy felt compelled to find additional employment was because Jacob made the decision to quit his job and pay her less in alimony. In the court’s view, Jacob’s decision “forc[ed]” Amy “to find additional employment.” We take no issue with the court’s observation that the law should not incentivize payor spouses to become voluntarily underemployed. But we do not think the law contains any such incentive; indeed, the customary (and presumably adequate) remedy for such behavior is for the court— where appropriate, and as the court did here—to find the payor spouse underemployed and impute to that spouse an income commensurate with the previous salary.[7]
¶37 Thus, we conclude that the district court erred in its analysis of Amy’s earning capacity. It erroneously determined that Amy’s earning capacity had not changed. And based on this determination, it stopped short of making a specific finding as to what Amy’s new earning capacity was, taking into account her new full-time job and, if appropriate, her part-time side endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 31, 437 P.3d 411 (“When determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, including income from a second job.” (quotation simplified)). The court should remedy these errors on remand, and should complete the calculation regarding Amy’s expenses and earning capacity, thus answering the question Jacob raises, namely, whether Amy has the ability to take care of her own needs through her own income.
¶38 Finally, the court’s analysis regarding Jacob’s ability to provide support was also incomplete, and will require additional analysis in the event the court concludes that Amy is not completely able to pay for all of her reasonable monthly needs. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (“[I]f the court finds that the recipient spouse is not able to meet her own needs, then it should assess whether the payor spouse’s income, after meeting his needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” (quotation simplified)). As already noted, the court imputed to Jacob a monthly income of $8,233, based on a finding of voluntary underemployment, and that determination is not challenged on appeal. But in order to compute Jacob’s ability to provide support to Amy to cover any determined shortfall, the court will need to compute Jacob’s reasonable monthly expenses, see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings should also address the obligor’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (quotation simplified)), which the court did not endeavor to do in its order.
¶39 As to whether a shortfall exists, the parties take divergent positions on appeal. Jacob asserts that no shortfall exists, and that Amy is able to pay all of her own reasonable monthly expenses. Amy, for her part, contends that even with her newly increased income she still has “a shortfall of over $1,800.” But Jacob’s alimony obligation ($2,300) apparently exceeds even Amy’s current calculation of her shortfall; under Amy’s computation of expenses, then, Jacob would still be entitled to at least some modification of his alimony obligation. On remand, the district court should run this complete calculation, making specific findings on each of the relevant factors, and should determine the extent to which Jacob’s alimony obligation should be modified.
CONCLUSION
¶40 The district court did not apply the proper legal analysis to Jacob’s petition to modify, and erred when it concluded that Amy’s earning capacity had not changed. We reverse the court’s denial of Jacob’s petition to modify, and remand this case for further proceedings consistent with this opinion.
[1] Because the parties have the same last name, we refer to them by their first names for clarity, with no disrespect intended by the apparent informality.
[2] Amy does not argue that we should affirm the denial of Jacob’s petition to modify on the basis that the original award was derived from a stipulation, and therefore the district court’s comments about holding Jacob to his stipulation are not directly before this court. But we note, for clarity, that even stipulated alimony awards are subject to modification. See, e.g., Diener v. Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a court “is certainly empowered to consider the circumstances surrounding an existing stipulation when considering a petition to modify . . . , the law was intended to give the courts power to disregard the stipulations or agreements of the parties . . . and enter judgment for such alimony . . . as appears reasonable, and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract” (quotation simplified)); accord Sill v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415.
[3] At the time Jacob filed his petition to modify, the relevant statute authorized modification of alimony awards when the movant could demonstrate that there had been “a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In 2021, prior to the trial on Jacob’s petition to modify, our legislature amended that statutory provision; under current law, modification is authorized upon a showing that there has been “a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.” Id. § 30-3-5(11)(a) (2022) (emphasis added). In this appeal, the parties have not briefed the question of which version of the statute applies to Jacob’s petition to modify, nor has either side suggested that the outcome of this case turns on these differences in statutory text. Operating on the assumption that Jacob is entitled to application of the version of the statute in effect when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (stating that “we apply the law as it exists at the time of the event regulated by the law in question,” and that when that event is a motion, “we apply the law as it exists at the time the motion is filed”), we apply the 2019 version of the statute in this appeal, but follow the parties’ lead in presuming this application to have no effect on the outcome of the case.
[4] Amy characterizes Jacob’s appellate claims as assertions that the district court’s findings were inadequate, and argues based on this characterization that Jacob—by not asking the court to make more detailed findings—failed to preserve his claims for appellate review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a party “waives any argument regarding whether the district court’s findings of fact were sufficiently detailed when the [party] fails to challenge the detail, or adequacy, of the findings with the district court” (quotation simplified)). While we acknowledge— as discussed herein—that the court did not make findings on several of the alimony factors, that was due to the court’s error (discussed herein) regarding Amy’s earning capacity, and its concomitant failure to complete the proper legal analysis. Thus, we disagree with Amy’s characterization of Jacob’s claims on appeal, and note that Jacob certainly preserved for our review the general question of whether the district court applied the correct legal analysis to his petition to modify, as well as the more specific question of whether Amy can meet her needs through her own income. Thus, we reject Amy’s assertion that Jacob’s contentions on appeal were not properly preserved for our review.
[5] We note that the court made this determination by looking solely at the change in Jacob’s income. Arguably, the change in Amy’s income would constitute a second basis for a determination that circumstances had changed significantly enough to revisit the appropriateness of the alimony award. Ultimately, however, it does not matter, for purposes of this appeal, which change the district court relied on to determine that a substantial material change had taken place.
[6] Amy argues that the “facts concerning [her] financial needs and conditions are clear from the record,” and on that basis urges us to excuse the court’s failure to make a specific finding. We disagree with the premise of Amy’s argument. At trial, Amy testified that her expenses had stayed the same since May 2018, but there was no 2018 figure to which Amy’s testimony could be compared. Moreover, after 2018, Amy submitted two conflicting financial declarations and, at trial, Jacob’s attorney established that Amy was then living alone rather than with one or more of the parties’ children. We therefore agree with Jacob that the evidence in the record regarding Amy’s expenses was sufficiently conflicting as to be significantly less than “clear.”
[7] Moreover, we do not think it inappropriate, in the abstract, for payee spouses to make an effort to enter the workforce, and thereby pursue a higher standard of living and a greater degree of independence from the payor spouse. We recognize that many spouses who have long been out of the workforce may find it difficult to reenter it, with or without additional education or training; generally speaking, our law does not require payee spouses in that situation to attempt to reenter the workforce in ways incongruous with their employment history. But a spouse who, whether by chance or perseverance, manages to gain a foothold in the workforce after a long absence may very well benefit from the experience; as we see it, our law should encourage self-sustainability and independence. Accordingly, we do not necessarily view—as the district court seemed to—the outcome of Amy’s employment journey to be an unfortunate one.
Charles R. Ahlstrom, Attorney for Appellant Jason B. Richards, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
ORME, Judge:
¶1Kathy Johansen challenges the district court’s denial of her motion to dismiss Colten Johansen’s petition to terminate alimony. She argues that the court erred in finding that Colten’s failure to provide initial disclosures was harmless.12 We agree and reverse.
BACKGROUND13
¶2In 2011, Kathy and Colten divorced. The divorce decree required Colten to pay Kathy alimony that was to terminate after 15 years or upon Kathy’s remarriage or cohabitation. On October 30, 2018, Colten filed a petition to terminate alimony, alleging that Kathy had been cohabitating with another man (Boyfriend) since at least January 2018. Acting pro se, Kathy filed her answer on November 8, 2018, denying the allegation. A pretrial conference was held the following March, during which the district court set the case for a three-day bench trial to begin in late August 2019. On July 29, Colten, having never filed his initial disclosures, provided pretrial disclosures that included his witness list and his exhibits. The witness list named Kathy, Colten, a private investigator, and Kathy and Colten’s daughter (Daughter). On August 6, Kathy moved to dismiss the petition to terminate alimony, alleging that Colten never served initial disclosures as required by rule 26 of the Utah Rules of Civil Procedure. Pursuant to rule 26, Colten was required to provide these disclosures way back in November 2018, 14 days after Kathy filed her answer to his petition. See Utah R. Civ. P. 26(a)(2)(A).
¶3Just before the trial began, the district court addressed Kathy’s motion to dismiss. Although the court stated that Colten appeared to have violated rule 26’s disclosure requirements, it declined to exclude Colten’s witnesses and exhibits because it found that the apparent violation of the rule was harmless. Specifically, while addressing Kathy, the court ruled:
[Colten’s] responsibility exists in and of itself to provide those initial disclosures to you. However, there is an exception. If . . . they can show that the failure is harmless or there is good cause, . . . they can overcome that requirement.
There’s one other requirement, and that is they don’t have to disclose anything to you that would be used for impeachment purposes. And so what they would do is they would simply call you to testify in their case in chief, allow you to testify.
Once you testify in a certain way, then [Colten] is going to say, “Well, we have witnesses.”
You’ll say, “Wait, those witnesses weren’t disclosed to me.”
And then he’ll say, “These are for rebuttal purposes or impeachment purposes only. We didn’t have to disclose impeachment evidence,” and so, really, it turns out to be harmless. It’s just a matter of the order in which they call their witnesses.
And in calling you first and having you testify first, then they bring in people [such as] a private investigator, your daughter or whoever that would be in the nature of impeachment evidence, which they are not required to disclose under Rule 26.
So the Court finds that while this does appear to be a violation of . . . or I’ll say could be aviolation of Rule 26(a)(2) and Rule 26.1(b), the violation would be harmless in that they’re not required under Rule 26 or 26.1(b) to disclose impeachment evidence that was retained for impeachment purposes only.
¶4And a few months after trial, at a hearing on Kathy’s motion to amend the court’s findings, the court added to its harmlessness finding:
As a party and as a person involved in a case, to . . . disclose [Kathy] as a potential witness certainly is helpful, but what is she going to do to then go find out from herself what her testimony will be and to find out from herself what her documents may be? She’s already got those. She should have that knowledge. That . . . is harmless. . . . I think this a prime and premium example of harmlessness, because her attempts to depose herself or subpoena her own documents or anything like that, that . . . just doesn’t make sense at all why that is necessary.
. . . . She had . . . at least 28 days to prepare for the fact that she was going to be a witness.
I believe . . . the [pretrial disclosures filed on July 29, 2019,] also disclosed the impeachment witnesses that were going to testify. So it’s not like she didn’t know that either.
So all of the purposes of Rule 26 were served under these circumstances[.]
¶5At trial, Colten first called Kathy to testify. She testified that during the time in question, Daughter and other family members lived with her. She stated that she and Boyfriend had been dating for approximately two years. Although she did affirm that Boyfriend kept a few dress shirts and a pair of running shoes at her house, and that he occasionally spent the night there, she denied that he had ever lived in the home with her. Colten then presented Kathy with photographs taken from inside her home. One photograph showed a carburetor that Boyfriend had designed and a plaque that he had received as an award for it. Kathy explained that Boyfriend had gifted both to her. The second photograph depicted a laptop and a pair of glasses. Kathy claimed that the laptop was Boyfriend’s that he let her borrow and that the glasses belonged to her. The next photograph was taken in her bathroom and showed shaving cream, a razor, and a bag. Kathy claimed that the shaving cream and razor were hers but the bag belonged to Boyfriend, which contained “his stuff to stay overnight.” Colten then showed Kathy multiple photos of a computer, her bedroom, and a spare bedroom. Kathy claimed that most of the items depicted in the photographs belonged to her or her children, with the exception of the dress shirts and running shoes that belonged to Boyfriend. Throughout Kathy’s testimony, she continued to aver that, while Boyfriend obviously spent time at the house, he did not live there.
¶6Colten next called himself as a witness. He testified that when he went to pick up his children from Kathy’s home, they “would tell me that [Boyfriend] was there the whole time that they would stay there.” Colten also testified that Boyfriend’s car would be at Kathy’s house a majority of the time he came by to pick them up. Colten then offered into evidence a mailed envelope, addressed to Boyfriend at Kathy’s address, that he found in a garbage can in front of Kathy’s house. Kathy objected to this evidence, claiming that she was not made aware of the envelope when Colten identified exhibits in his pretrial disclosures. The court overruled her objection, stating, “For impeachment purposes those things are not required to be disclosed.”
¶7Colten next called Daughter to testify. She stated that Boyfriend was living with Kathy in the home, that he kept his personal belongings in the home, that he had a key to the home, and that he had complete access to the home at all times. She also claimed that Boyfriend slept in the same room as Kathy, gave Kathy money, and bought groceries. Daughter stated that she had taken the photographs that were shown to Kathy during Kathy’s testimony, and that the computer, clothes, and other items mostly belonged to Boyfriend and not to Kathy or to Kathy’s children, as Kathy had claimed. Finally, Daughter testified that Boyfriend spent approximately 95% of his nights at the home.
¶8Colten’s final witness was a private investigator. He testified that over the course of the five days he spent surveilling the home, he witnessed Boyfriend carry groceries from his vehicle into the home, take tools from the garage and put them in his truck, have conversations with neighbors in which he presented himself as Kathy’s husband, enter the home in the evening and leave the next morning in different clothes, and undertake other actions indicative of Boyfriend living in the home. Colten then offered into evidence the investigator’s written report, which the court accepted.
¶9Kathy called no witnesses of her own. The district court subsequently found that Kathy and Boyfriend had cohabitated from January 2018 until at least November 2018, when Colten served Kathy with the petition to terminate alimony. Accordingly, the court terminated Colten’s alimony obligations retroactive to January 2018 and entered judgment against Kathy in the amount of the excess alimony Colten had paid since that time.
¶10Kathy appeals.
ISSUE AND STANDARD OF REVIEW
¶11 Kathy contends that the district court erred in denying her motion to dismiss Colten’s petition to terminate alimony and bar all his witnesses as a sanction pursuant to rule 26(d)(4) of the Utah Rules of Civil Procedure.14 “We review a district court’s interpretation of our rules of civil procedure, precedent, and common law for correctness.” Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶ 12, 445 P.3d 434. But in reviewing a court’s determination with respect to harmlessness and good cause, our review is necessarily deferential. This is because “a court’s decision in discovery matters is a discretionary call, and . . . we will affirm such decisions when the court’s discretion was not abused, even if we or another court might have made a different decision in the first instance.” Segota v. Young 180 Co., 2020 UT App 105, ¶ 22, 470 P.3d 479 (quotation simplified). Accordingly, we will reverse a court’s harmlessness determination “only if there is no reasonable basis for the district court’s decision.” See Berger v. Ogden Reg’l Med. Center, 2020 UT App 85, ¶ 15, 469 P.3d 1127 (quotation simplified).
ANALYSIS
¶12 In relevant part, rule 26 of the Utah Rules of Civil Procedure requires parties to serve initial disclosures “without waiting for a discovery request.” Utah R. Civ. P. 26(a)(1). These disclosures must include “the name and, if known, the address and telephone number of . . . each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment . . . ; and . . . each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony.” Id. R. 26(a)(1)(A). A party is further required to serve on the opposing party “a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief.” Id. R. 26(a)(1)(B).
¶13 A plaintiff is required to make initial disclosures “within 14 days after filing of the first answer to the complaint.” Id. R. 26(a)(2)(A). If a party fails to serve these disclosures, “that party may not use the undisclosed witness, document or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). In cases like the one now before us, “where initial disclosures were not provided at all,” a party faces an uphill battle to show harmlessness because otherwise it would shift “an unacceptable burden on the opposing party to closely parse the pleadings and discovery exchanged (if any) to decrypt which individuals even have discoverable information.” Hansen v. Kurry Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and Pohlman, J., concurring). See also Ollier v. Sweetwater Union High School Dist., 768 F.3d 843, 863 (9th Cir. 2014) (“An adverse party should not have to guess which undisclosed witnesses may be called to testify.”), cited with approval in Hansen, 2021 UT App 54, ¶ 44 n.12.
And even in cases that do not involve “complicated” factual disputes, this burden may still be significant. As just one example, witnesses known to the opposing party may nevertheless speak to other individuals (unknown to the opposing party) about the operative facts of the case. These individuals would thus, unbeknownst to the opposing party, have discoverable information and might even be crucial witnesses.
Hansen, 2021 UT App 54, ¶ 44 n.12 (internal citation omitted). Thus, “a disclosing party who endeavors, by stratagem or otherwise, to disclose as little as possible faces a significant risk that the disclosure will be found insufficient and the evidence or the witness may not be allowed. To minimize this risk, disclosing parties should be liberally forthcoming rather than minimally compliant and risk the possible consequences of testimony exclusion.” RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 30, 392 P.3d 956 (quotation simplified).
¶14Here, it is undisputed that Colten completely failed to file his rule 26 initial disclosures detailing the witnesses or the material supporting his claim, insofar as then in his possession, either when initially due or at any time thereafter. Thus, the presumptive sanction was for his evidence to be barred from trial. See Utah R. Civ. P. 26(d)(4). But because the district court found this failure to be harmless, Colten was ultimately allowed to present all his evidence at trial. To come to this conclusion, the court made what is in essence a two-part ruling. First, it found that Colten’s failure to disclose Kathy as a case-in-chief witness was harmless because she presumably knew what her testimony would be. Second, having found that this was harmless, it essentially piggybacked on that ruling and determined Colten did not have to disclose the remaining witnesses and evidence under rule 26’s impeachment exception. We disagree on both counts.
Kathy’s Testimony
¶15Colten argues that the district court’s harmlessness ruling in regard to his calling Kathy as a witness was correct because “it is nonsensical to think that Kathy would need to depose or seek document production from herself” and because “[t]here were many times throughout the history of the case where Kathy was put on notice that her alleged cohabitation was the only issue for trial.” All this, Colten argues, put Kathy “at absolutely no disadvantage by her not being listed on Colten’s initial disclosures.” We disagree.
¶16Colten and the district court both focus unduly on the fact that Kathy would know what her testimony would be. But both fail to recognize that if Colten had actually served his initial disclosures informing Kathy that she was the only witness on whom his case was based—and the court’s order assumes he had to disclose only Kathy—that disclosure could have completely altered Kathy’s legal strategy, including her decision on whether she should retain counsel.
¶17Knowing that Colten was going to make his case based on her testimony would be quite instructive concerning Colten’s trial strategy or lack thereof. Having knowledge of this important fact early on, Kathy likely would have deposed Colten or at least sent him interrogatories to ferret out how he believed her testimony would help him prove his case-in-chief, given the denial in her answer that she was cohabitating. See Saudi v. Valmet-Appleton, Inc., 219 F.R.D. 128, 134 (E.D. Wis. 2003) (“The importance of . . . witness disclosures and the harms resulting from a failure to disclose need little elaboration. When one party does not disclose, the responding party cannot conduct necessary discovery, or prepare to respond to witnesses that have not been disclosed[.]”), cited with approval in Hansen v. Kurry Jensen Props., 2021 UT App 54, ¶ 44 n.12, 493 P.3d 1131 (Mortensen, J., and Pohlman, J., concurring). Early disclosure of Kathy’s pivotal role in Colten’s case-in-chief would have led Kathy to discover the “impeachment” witnesses and materials Colten had in reserve and through which he actually intended to prove his case under the guise of impeaching Kathy’s testimony, long before he made Kathy aware of this information in his pretrial disclosures just 28 days before trial.
¶18 Thus, had Kathy been informed that she would be Colten’s only case-in-chief witness,15 she would have been given a better opportunity to decide whether she needed to hire an attorney and investigate what Colten’s case really hinged on, better preparing herself for trial. Not being provided this information until 28 days before trial—months past the rule 26 deadline for initial disclosures—went against the purpose of rule 26, “which is to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been [properly] disclosed.” Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927. See also Utah R. Civ. P. 26 advisory committee notes (“The intent of [initial disclosures] is to give the other side basic information concerning the subjects about which the witness is expected to testify at trial, so that the other side may determine the witness’s relative importance in the case, whether the witness should be interviewed or deposed, and whether additional documents or information concerning the witness should be sought.”). As we have explained,
Disclosure of specific facts and opinions is required so that parties can make better informed choices about the discovery they want to undertake or, just as important, what discovery they want to forgo. More complete disclosures serve the beneficial purpose of sometimes giving the opposing party the confidence to not engage in further discovery. But this is only true if the potential for surprise is reduced by at least minimum compliance with the rule 26 disclosure requirements.
RJW Media Inc. v. Heath, 2017 UT App 34, ¶ 25, 392 P.3d 956. While RJW Media dealt with disclosures about expert testimony, these policy considerations apply to all disclosures and to the circumstances present in the instant case.
¶19 Essentially, Colten’s and the district court’s rationale would lead to the conclusion that it is always harmless to omit from initial disclosures the fact that the plaintiff plans to call the opposing party as a witness because that party will always know their own testimony. But this approach essentially eviscerates the rule that explicitly requires parties to designate the opposing party as a witness if they intend to call the opposing party in their case-in-chief at trial, albeit with a less extensive disclosure duty than with other witnesses. See Utah R. Civ. P. 26(a)(1)(A)(ii) (requiring parties to designate “each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony”). Ultimately, this rationale misses the point that an opposing party can be harmed in this situation. A party may well know the content of their own testimony, but the fact that they will or will not be called as a witness by the other side in the other side’s case-in-chief undoubtedly will dictate how they prepare to prosecute or defend at trial. Thus, the district court exceeded its discretion in determining that Colten’s failure to provide initial disclosures naming Kathy as his only case-in-chief witness was harmless, and the court should have precluded Colten’s use of her testimony due to his clear violation of the rule.
¶20 This is not the end of the inquiry, however, because “when we determine that a trial court erred, we do not reverse unless there is a reasonable likelihood that a different result would have been reached absent the errors,” or, in other words, we do not reverse unless the aggrieved party was prejudiced. Leev. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88 (quotation simplified). See also 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.”). We need not belabor this analysis. It is perfectly clear that had the court excluded Kathy from testifying as Colten’s witness, it is certain that a different result would have been reached given that Colten’s strategy was to call Kathy and then prove his case by impeaching her testimony. Specifically, had the court precluded Colten from calling Kathy to testify, Colten would have had no testimony to impeach and he would have been unable to prove his case for lack of evidence. Thus, Kathy was prejudiced by the court’s failure to exclude her as a witness for Colten.
Remaining Evidence
¶21 Colten argues that the district court did not err in admitting his remaining evidence because rule 26 “does not require a party to disclose witnesses or evidence if it is solely used for impeachment.” See Utah R. Civ. P. 26(a)(1)(A)(i). Colten also asserts that because “Utah has not held that the ‘solely for impeachment’ language means that you can only present it when challenging a particular witness’s veracity or credibility . . . , the trial court ha[d] the discretion to use impeachment evidence to assist in establishing the core facts of a case.” We disagree and we reverse the court’s ruling concerning the remaining evidence on two grounds.
First Ground: Kathy’s Testimony
¶22 To be clear, in a technical sense, we need not reach the district court’s impeachment ruling because of the nature of its order regarding Colten’s ability to call Kathy as a witness. Specifically, the court actually excluded Colten’s remaining witnesses and evidence from being used in his case-in-chief for anything other than impeachment by reason of his failure to make his initial disclosures. Accordingly, under the court’s ruling, and had Kathy been precluded from testifying as she should have been, Colten would not have been able to present any of his remaining evidence because the court would allow it only for the purpose of impeaching Kathy. And because we have determined that the court exceeded its discretion in allowing Colten to call Kathy as a witness despite not having initially disclosed his plan to do so, it necessarily follows that none of Colten’s remaining witnesses and evidence should have been allowed. Because Kathy could not properly have been called, there would have been no testimony to impeach. Kathy was thus necessarily prejudiced because, without this evidence, Colten could not have proven his case, and the district court should have then dismissed his petition. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88.
Second Ground: Limits of Impeachment Exception
¶23 We also reverse the district court’s ruling on the independent ground that, even if it was not error to allow Kathy to testify in Colten’s case-in-chief, the court misapplied the rules of civil procedure in allowing Colten to present his remaining witnesses and documents as impeachment evidence. Regardless of whether Kathy should have been permitted to testify, the court still erred in allowing Colten’s remaining evidence under rule 26’s impeachment exception.16
¶24Rule 26 states that
(a)(1) . . . a party shall, without waiting for a discovery request, serve on the other parties:
(A) the name and, if known, the address and telephone number of:
(i) each individual likely to have discoverable information supporting its claims or defenses, unless solely for impeachment, identifying the subjects of the information; and
(ii) each fact witness the party may call in its case-in-chief and, except for an adverse party, a summary of the expected testimony;
(B) a copy of all documents, data compilations, electronically stored information, and tangible things in the possession or control of the party that the party may offer in its case-in-chief . . . .
Utah R. Civ. P. 26(a)(1).
¶25“When we interpret a procedural rule, we do so according to our general rules of statutory construction.” Arbogast Family Trust v. River Crossings, LLC, 2010 UT 40, ¶ 18, 238 P.3d 1035. Thus, “we start by examining the ordinary meaning or usually accepted interpretation.” Id. If we determine the language is unambiguous, then the inquiry ends there. Pilot v. Hill, 2018 UT App 105, ¶ 11, 427 P.3d 508, aff’d, 2019 UT 10, 437 P.3d 362. Cf. Amax Magnesium Corp. v. Utah State Tax Comm’n, 796 P.2d 1256, 1258 (Utah 1990) (“[S]tatutory construction mandates that a statute be read according to its literal wording unless it would be unreasonably confusing or inoperable.”). In undertaking this inquiry, we presume “that the words and phrases used were chosen carefully and advisedly.” Amax Magnesium Corp., 796 P.2d at 1258.
¶26 Based on the plain language of rule 26, the “solely for impeachment” exception is found within subsection (a)(1)(A)(i), which addresses only “individual[s] likely to have discoverable information supporting [the party’s] claims or defenses.” Utah R. Civ. P. 26(a)(1)(A)(i). This exception does not appear in subsections (a)(1)(A)(ii) or (a)(1)(B), which deal with witnesses and documents and other tangible things that a party plans on using in its case-in-chief. Thus, because we presume that the drafters of the rule used the words and phrases in rule 26 “carefully and advisedly,” Amax Magnesium Corp., 796 P.2d at 1258, an impeachment exception cannot be read into subsections (a)(1)(A)(ii) and (a)(1)(B) to allow for witnesses or documents and tangible things a party plans to use in its case-in-chief to not be initially disclosed even if their use is focused on impeachment. Therefore, an analysis of whether a witness should have been disclosed turns initially on whether that witness will be called in a party’s case-in-chief or held in reserve as a possible rebuttal witness whose testimony is “solely for impeachment.”
¶27This interpretation comports with the purpose of the rule as a whole, see id. (“A principal rule of statutory construction is that the terms of a statute should not be interpreted in a piecemeal fashion, but as a whole.”), which is to maximize disclosure “to preclude parties from trying to gain an advantage by offering ‘surprise’ testimony at trial that has not been [properly] disclosed,” see Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 24, 438 P.3d 25, aff’d, 2020 UT 59, 472 P.3d 927. If we were to allow a party to forgo disclosing in initial disclosures the witnesses and documents it planned to use in its case-in-chief and then slip them in at trial under the impeachment exception, then we would not be following the clear language of the rule, much less honoring its purpose.17
¶28 We first address the documents and tangible things the court allowed and then turn to the witnesses Colten was permitted to call at trial.
Documents and Tangible Things
¶29 Once Colten filed his petition, under subsection (a)(1)(B) any documents and tangible things in his possession that Colten intended to present in his case-in-chief were required to be disclosed to Kathy in initial disclosures. In making initial disclosures, no impeachment exception exists allowing such evidence not to be disclosed. Therefore, all the pictures Colten presented from inside Kathy’s home and the private investigator’s report should not have been allowed at trial because Colten failed to disclose any of it to Kathy in his initial disclosures.18 Utah R. Civ. P. 26(a)(1)(B); id. R. 26(d)(4).
Witnesses
¶30 Colten, Daughter, and the private investigator were all witnesses Colten called as part of his case-in-chief for purposes of subsection (a)(1)(A)(i) of rule 26. They were not merely “individual[s] likely to have discoverable information supporting [his] claims” who had nothing to offer beyond impeachment evidence, which would make them exempt from disclosure under subsection (a)(1)(A)(ii). On the contrary, as witnesses used exclusively in Colten’s case-in-chief, their contact information and a summary of their expected testimony was required to be served on Kathy in initial disclosures. See id. R. 26(a)(1)(A)(ii).
¶31 Colten’s trial strategy was to first call Kathy in his case-in-chief, and she categorically denied that she was cohabitating with Boyfriend. Continuing with his case-in-chief, Colten then called himself, Daughter, and the private investigator to testify that Kathy was, in fact, cohabitating with Boyfriend.19 The court allowed these witnesses to testify in Colten’s case-in-chief even though they had not been disclosed in initial disclosures because it ruled that they were used solely for impeaching Kathy’s testimony and did not have to be disclosed under subsection (a)(1)(A)(i). This reasoning was flawed because this subsection’s “solely for impeachment” exception did not properly come into play.20 While these witnesses may have been impeaching Kathy’s testimony, they were still called in Colten’s case-in-chief, before Kathy presented any evidence in her defense, and were thus fact witnesses Colten intended to call in his case-in-chief for purposes of subsection (a)(1)(A)(ii), thus requiring that they be disclosed in initial disclosures. This is borne out by the fact that had Colten simply called Kathy in his case-in-chief and then rested, his case would have been dismissed for lack of evidence. Rather, after he called Kathy to testify, he continued his presentation of witnesses and called himself, Daughter, and the private investigator to establish that Kathy was cohabitating—all as part of his case-in-chief.
¶32Based on the plain language of rule 26, the district court
erred in allowing Colten to call any of his witnesses or to present the photographs and investigator’s report because it was all used in Colten’s case-in-chief and was required to be disclosed in initial disclosures pursuant to subsections (a)(1)(A)(ii) and (a)(1)(B). Yet, the court essentially allowed Colten to present his entire case-in-chief under subsection (a)(1)(A)(i)’s impeachment exception, which is an incorrect use of that extremely limited exception, constituting reversible error.21 Because Colten was required to serve his initial disclosures detailing this information and failed to do so, Colten has to show that such failure was harmless to Kathy or that his failure to disclose was a result of good cause. See id. R. 26(d)(4). He has not made that showing, and Kathy was prejudiced by the district court’s erroneous ruling because without the evidence Colten presented during his case-in-chief, he could not have proven that Kathy cohabited with Boyfriend. See Lee v. Williams, 2018 UT App 54, ¶ 69, 420 P.3d 88.
CONCLUSION
¶33 The district court erred in allowing Colten to call his witnesses and present his documents at trial. Kathy was harmed by not being informed in the required initial disclosures that she would be called as a witness by Colten in his case-in-chief, and the court misapplied rule 26 of the Utah Rules of Civil Procedure in allowing Colten’s remaining witnesses to testify under the “solely for impeachment” exception because they were witnesses used in Colten’s case-in-chief. The court also erred in allowing Colten to present any of his documents and tangible things under the inapplicable impeachment exception. We therefore vacate the judgment against Kathy and remand with instructions to dismiss Colten’s petition to terminate alimony.
Utah Family Law, LC | divorceutah.com | 801-466-9277
BRUCE RAY MCFARLAND, Appellant and Cross-appellee, v. NICOLE S. MCFARLAND, Appellee and Cross-appellant.
Opinion
No. 20190541-CA Filed June 4, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 084701533
Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee
Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND The Divorce Decree
¶2In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments.
¶3But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.”
¶4With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2
Post-Divorce Events and Conduct
¶5Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind.
¶6In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).
¶7In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried.
¶8For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other.
The Post-Divorce Filings
¶9The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization.
¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects:
(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home.
¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify.
¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.”
¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify.
The Hearing and Subsequent Ruling
¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs.
¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction.
¶16A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount.
¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole.
¶18With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing.
ISSUES AND STANDARDS OF REVIEW
¶19 Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified).
¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4
ANALYSIS I. Alimony
¶21We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling.
¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)).
¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7
Child Support
¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s.
A
¶25In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”).
¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party.
¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows:
Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child.
Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.; see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time.
¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11.
¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2).
B
¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.)
¶31Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter).
1
¶32In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added).
¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event,
child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient.
Id.
¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id.
¶35Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017.
2
¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custody. See Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily defined. See id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time).
¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequential. See Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangement. See Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement.
¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term.
¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes.
3
¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows:
Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole].
¶41We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”).
¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4).
¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g., Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case.
¶44Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments.
C
¶45Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions.
CONCLUSION
¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders.
¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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
KELLEY ANNE SOMER, Appellant,
v. ERIC JOHN SOMER, Appellee.
Opinion
No. 20190293-CA
Filed June 11, 2020
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie, No. 134900325
Carolyn Perkins, Attorney for Appellant
Brady T. Gibbs, Attorney for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Kelley Anne Somer failed to timely respond to a petition to modify that had been personally served upon her. The district court entered her default and granted the petition, terminating the alimony obligation established in the divorce decree. Kelley then moved to set aside the order on the ground of excusable neglect. A commissioner recommended that the motion to set aside be denied, and Kelley objected. The district court overruled Kelley’s objection and entered an order denying her motion. Kelley appeals, claiming that the district court applied the wrong standard in ruling on the objection and exceeded its discretion in denying the motion to set aside. Although we agree that the district court applied the incorrect legal standard as to Kelley’s objection, we conclude that Kelley invited the error. We further conclude that the district court did not exceed its discretion in refusing to set aside the order modifying the decree. We therefore affirm.[1]
BACKGROUND
¶2 Kelley and Eric married in the summer of 1990. In the beginning of 2013, Kelley filed for divorce, alleging irreconcilable differences. A little more than two years later, after significant litigation, the district court entered a divorce decree. In the decree, Eric was ordered to make alimony payments of $2,416 per month for twelve years. The divorce decree added various standard conditions, including that the alimony obligation would terminate upon “the death of either party, the remarriage of [Kelley,] or the cohabitation of [Kelley].”
¶3 In September 2016, Eric stopped paying alimony and, on May 25, 2018, brought a petition to modify the divorce decree. In his petition, Eric’s sole request was a cessation of his alimony obligation. Eric alleged that Kelley had been cohabiting with another man since early 2016. On that basis, Eric sought termination of his alimony obligation prospectively in full and retroactively to the date on which the cohabiting purportedly commenced.
¶4 On June 3, 2018, Eric effected personal service of his petition on Kelley. The summons expressly stated, “[Y]ou must file your written, signed answer with the clerk of the court” within twenty-one days, and it included a URL link to a blank answer form on the court’s website. It also identified a court website for legal assistance and warned that failure to file an answer in the allotted time could lead to “judgment by default . . . for the relief demanded in the [p]etition.”
¶5 After receiving service, Kelley pursued several courses of action. She first sought to retain one of her former attorneys, but the attorney was no longer taking clients. Kelley then went to Legal Aid Society at the Matheson Courthouse. She also met with an attorney at the West Jordan Family Law Clinic and received an answer guide packet. On the Friday before her answer was due, Kelley called the commissioner’s chambers but claims she did not receive a response. So, she went to the courthouse and left a note requesting assistance. While at the courthouse, Kelley accessed the law library and made copies of excerpts of the Utah Rules of Civil Procedure. Finally, on the day her answer was due, which was Monday, June 25, 2018,[2] Kelley claims she called the commissioner’s chambers again, leaving a voice message. But she did not file her answer on that day.
¶6 On the following Wednesday, June 28, 2018, Eric submitted default documents to the court. The court clerk entered the default, and the district court entered default judgment when it signed findings of fact, conclusions of law, and an order modifying the decree. Later that same day, Kelley filed a motion for an extension to answer, which the court denied. The court noted that the motion was several days late, that Kelley had received personal service of the summons, and that the default certificate had been entered before the request for an extension of time was filed.
¶7 Kelley thereafter retained counsel and, on July 25, 2018, filed a motion to set aside the default judgment for excusable neglect under rule 60(b)(1) of the Utah Rules of Civil Procedure. She included a proposed answer as an exhibit to her motion. In her proposed answer, she denied cohabiting with the other man. The commissioner recommended the motion be denied, concluding that Kelley’s neglect was not excusable. Kelley made a rule 108 objection to the commissioner’s recommended ruling.[3]
¶8 The objection was fully briefed and came before the district court for hearing. The court reviewed the commissioner’s recommendation, ultimately overruled Kelley’s objection, and denied the motion to set aside the order modifying the decree. On the record, the court indicated that it was reviewing the commissioner’s recommendation under an abuse of discretion standard. In an order memorializing its findings and conclusions, the court indicated that it was “unable to find any error on the [c]ommissioner’s part.” Further, the court concluded that Kelley had failed to exercise sufficient diligence to justify excusing her delay. It found that Kelley’s first attempt to do anything proactive in this case was eight days before the answer was due and explained that her actions “were too little, too late.”
¶9 Kelley appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Kelley contends that the district court erred in denying her motion for relief from default judgment under rule 60(b)(1) of the Utah Rules of Civil Procedure. In the context of a motion to set aside a default judgment, the movant must show that “(1) the motion is timely;[4] (2) there is a basis for granting relief one of the subsections of 60(b); and (3) the movant has alleged a meritorious defense.” E.g., Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d 322 (cleaned up).
¶11 On appeal, Kelley asserts two main contentions: (I) the district court applied the incorrect legal standards in reviewing the commissioner’s recommended ruling and (II) the district court abused its discretion in denying her rule 60(b) motion because her actions constituted excusable neglect.[5] We review whether the district court applied the correct legal standard for correctness. Rodriguez v. Kroger Co., 2018 UT 25, ¶ 11, 422 P.3d 815 (noting that although a district court’s decision is reviewed under an abuse of discretion standard, “whether the district court applied the appropriate standard . . . presents a legal question that we review for correctness”). “We review a district court’s denial of a rule 60(b) motion for relief from judgment for an abuse of discretion.” Jones v. Layton/Okland, 2009 UT 39, ¶ 10, 214 P.3d 859.
ANALYSIS
I. Rule 108 Legal Standard
¶12 Kelley contends that the district court applied the incorrect legal standard in its rule 108 review of the commissioner’s conclusions. We agree. In Day v. Barnes, 2018 UT App 143, 427 P.3d 1272, we explained that rule 108 of the Utah Rules of Civil Procedure “does not provide for an appeal-like review of a commissioner’s decision, but instead requires ‘independent findings of fact and conclusions of law based on the evidence.’” Id. ¶ 16 (quoting Utah R. Civ. P. 108(f)). We gave several reasons for our conclusion, most notably the plain language of rule 108 and the logic behind the district court’s independent review—that is, the commissioner’s ruling ultimately becomes the district court’s order, and thus “[i]t would make little sense that the district court would be limited in reviewing what is essentially its own order.” Id. ¶ 18.
¶13 The district court, however, engaged in an abuse of discretion review of the commissioner’s recommendation. The court stated that it had “to look at the discretion that the commissioner has and make a determination as to whether or not there was an abuse of that discretion . . . .” We reiterate that not conducting an independent assessment of the facts and legal issues contravenes the plain language of rule 108 and our holding in Day. See id. ¶ 16 (“[T]he rule is explicit that the district court’s review is independent on both the evidence and the law.”).
¶14 However, the invited error doctrine constrains us from reversing on this basis. “Under the doctrine of invited error, an error is invited when counsel encourages the [district] court to make an erroneous ruling.” State v. McNeil, 2016 UT 3, ¶ 17, 365 P.3d 699. To invite error, a “party must manifest some sort of affirmative representation to the [district] court that the court is proceeding appropriately.” State v. Carrick, 2020 UT App 18, ¶ 34, 458 P.3d 1167 (cleaned up). “Where a party makes an affirmative representation encouraging the court to proceed without further consideration of an issue, an appellate court” does not consider the party’s objection to that action on appeal. State v. Moa, 2012 UT 28, ¶ 27, 282 P.3d 985; see also ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 20, 397 P.3d 772.
¶15 As Eric asserts, Kelley invited the court’s error by stating, “It’s my perspective and my belief at this point that the court’s decision . . . is whether or not the commissioner abused [its] discretion with regard to the excusable neglect component to the motion to set aside.” Were it not for such a statement, we would “vacate the district court’s order and remand with instruction that the district court make independent findings and conclusions without imposing an erroneous” legal standard. See Day, 2018 UT App 143, ¶ 20. But Kelley’s affirmative representation served to encourage the court to proceed along an erroneous path, and therefore prevents vacatur on this basis.
II. Excusable Neglect
¶16 Kelley also contends that the district court abused its discretion in denying her motion based on excusable neglect. We disagree. Under rule 60(b) of the Utah Rules of Civil Procedure, a district court may set aside “a judgment, order, or proceeding” on a timely motion and “just terms” for one of the various enumerated reasons, including “excusable neglect.” Utah R. Civ. 60(b)(1). In this context, district courts not only have discretion, they have “broad discretion.” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859 (emphasis added); see also Fisher v. Bybee, 2004 UT 92, ¶ 7, 104 P.3d 1198 (“The outcome of rule 60(b) motions are rarely vulnerable to attack. We grant broad discretion to . . . rule 60(b) rulings because most are equitable in nature, saturated with facts, and call upon judges to apply fundamental principles of fairness that do not easily lend themselves to appellate review.”). Simply disagreeing with the district court’s conclusion is not enough. We must conclude that the decision was so illogical, arbitrary, or unreasonable that it shocks our sense of justice. Jones, 2009 UT 39, ¶ 27. After all, “[t]he equitable nature of the excusable neglect determination requires that a district court be free to consider all facts it deems relevant to its decision and weigh them accordingly.” Id. ¶ 18.
¶17 When exercising this broad discretion, a district court must determine whether a party has exhibited due diligence. “Due diligence is established where the failure to act was the result of the neglect one would expect from a reasonably prudent person under similar circumstances.” Sewell v. Xpress Lube, 2013 UT 61, ¶ 29, 321 P.3d 1080 (cleaned up). “The ultimate goal of the excusable neglect inquiry” is to determine “whether the moving party has been sufficiently diligent that the consequences of its neglect may be equitably excused.” Jones, 2009 UT 39, ¶ 20. Sufficient diligence supplies a “reasonable justification or excuse for” a failure to respond. Sewell, 2013 UT 61, ¶ 15 (cleaned up).
¶18 Whether a party’s efforts are sufficient will always depend on the attendant circumstances. Jones, 2009 UT 39, ¶ 22 (explaining that a party’s “failure to attend to its legal obligation, may be sufficiently diligent and responsible, in light of the attendant circumstances, to justify excusing it from the full consequences of its neglect”). Sufficient diligence falls on a spectrum between no diligence and perfect diligence. Id. ¶ 23. Indeed, while exercising no diligence will never hit the mark of excusable neglect, exhibiting perfect diligence is not required. Id. ¶ 22 (“Perfect diligence is not required.”); Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 19, 376 P.3d 322 (“Relief may not be granted based on other equitable considerations where a party has exercised no diligence at all.” (cleaned up)). Otherwise, rule 60(b)’s excusable neglect provision would be meaningless because in a perfect world with perfect diligence no neglect would ever occur.
¶19 Given the attendant circumstances of this case, the district court acted within its discretion in determining that Kelley’s actions fell short of sufficient diligence. It is true that Kelley exercised some diligence. Rather than doing nothing during the time she had to file her answer, Kelley made minimal efforts. She first tried to hire her former attorney. When that was unsuccessful, she sought to become competent to file an answer by herself. She visited both Legal Aid Society at the Matheson Courthouse and the West Jordan Family Law Clinic, receiving an informative packet related to filing answers. She also engaged in independent research of the Utah Rules of Civil Procedure at the courthouse library. And she called the commissioner’s chambers several times, leaving voice messages and a note as well. Finally, she filed a motion to extend the deadline to answer only days after the answer was due. These efforts may have supported a decision to grant the motion to set aside the default judgment. But the motion was denied. We cannot say that the district court abused its broad discretion for the following reasons.
¶20 To begin, Kelley received personal service of the petition, so it is indisputable that she had knowledge during the entire period that she had to file an answer or even a motion to extend the deadline for that matter.[6] Moreover, the summons contained cautionary language. It stated that “you must file your written, signed answer with the clerk of the court” within twenty-one days. The summons also identified a court website for legal assistance and warned that failure to file an answer in the allotted time could lead to “judgment by default . . . for the relief demanded in the [p]etition.” Additionally, Kelley claims that the petition surprised her, but this is dubious. The conditions set forth in the divorce decree gave the parties notice that alimony was modifiable. Thus, a petition to modify was far from unforeseeable. And this particular petition was more foreseeable because Kelley, in her proposed answer, admitted to staying at the other man’s house, albeit allegedly with her children who were staying there, which could be seen by Eric as cohabiting— one of the explicit divorce decree conditions for modification.
¶21 Furthermore, Kelley knew very well how to hire an attorney, as she had been represented by four attorneys during the divorce litigation. Thus, she was capable of contacting any number of attorneys from our state’s bar to assist her in filing her answer. More to that point, she could have even hired an attorney for the limited purpose of helping her file an answer while she retained more permanent counsel. And the district court found that Kelley’s first attempt to do anything proactive in this case—attempting to retain one of her former attorneys— was just eight days before the answer was due. Under different circumstances, involving a person less familiar with attorneys, this aspect of the case may not be as significant. But Kelley’s familiarity with hiring an attorney militates against her in this case, especially given the full twenty-two days she had to retain one and her single, delayed attempt to that end.
¶22 Another fact works against Kelley in this case: she had a history of tardiness. Three motions for default judgment had been filed against her during the divorce litigation due to alleged dilatory actions. And two of those motions were related to her failure to appear or appoint counsel, as she proceeded pro se. From this experience with previous motions for default judgment, Kelley knew the consequences of not responding on time. And, as noted, the possibility of a default judgment was explicitly stated on the summons she received. Therefore, she was well-aware of what would occur if she did not exercise sufficient diligence.
¶23 Ultimately, Kelley did not attempt to file anything in the prescribed time. All her efforts were essentially research without taking the required action, which of course was actually filing a timely answer—or something else within the specified time. And the district court concluded that, among Kelley’s efforts, she must have received information on how to file an answer. The court stated that it did not “find it credible that she did not get information on how to file a simple answer in this matter.” Kelley does not challenge this finding. Indeed, she spoke with Legal Aid Society at the courthouse, an attorney at the West Jordan Family Law Clinic, received an answer packet with an explanation of how to answer and defend petitions, and did research of her own into the rules of civil procedure. Therefore, Kelley made a conscious choice not to do what she had been informed of: timely filing an answer.
¶24 In short, Kelley’s meager efforts lend support to the conclusion that her neglect was not excusable, and we defer to the district court’s broad discretion. See Jones, 2009 UT 39, ¶ 17.[7]
CONCLUSION
¶25 We hold that the district court committed error in its rule 108 review of the commissioner’s recommended ruling, but that the error was invited, and therefore not subject to reversal. We also hold that the district court did not exceed its broad discretion in determining that Kelley’s actions were not excusable under rule 60(b)(1) of the Utah Rules of Civil Procedure. Accordingly, we affirm.
Utah Family Law, LC | divorceutah.com | 801-466-9277
—————
[1] Because the parties have the same last name, we refer to them by their first names throughout this opinion with no disrespect intended by the apparent informality.
[3]See id. R. 108(a) (establishing that “[a] party may file a written objection to the recommendation” of a court commissioner).
[4] Timeliness is not an issue here. Rule 60(c) provides a party “90 days after entry of the judgment or order” to file a motion under rule 60(b)(1). Id. R. 60(c). The parties correctly agree that the motion to set aside the default judgment was timely because the under judgment was entered on June 28, 2018, and Kelley filed her motion on July 25, 2018—indubitably within the prescribed ninety-day period.
[5] The parties also dispute whether Kelley presented a meritorious defense, but we do not reach this issue because we conclude that the district court did not abuse its discretion in determining that Kelley failed to exercise excusable neglect. See Asset Acceptance LLC v. Stocks, 2016 UT App 84, ¶ 13, 376 P.3d 322 (“It is unnecessary, and moreover inappropriate, to even consider the issue of a meritorious defense unless the court is satisfied that a sufficient excuse has been shown.” (cleaned up)). However, we take occasion to clarify that Eric’s arguments misapprehend the law on this issue. He asserts that because Kelley’s proposed answer “failed to present any admissible evidence demonstrating a meritorious defense” and was “unverified and unattested,” Kelley did not present a meritorious defense. But Utah jurisprudence is abundantly clear that proof beyond allegations stating a claim or defense is unnecessary. E.g., Sewell v. Xpress Lube, 2013 UT 61, ¶¶ 33–34, 321 P.3d 1080; Metropolitan Water Dist. of Salt Lake & Sandy v. Sorf, 2013 UT 27, ¶ 24, 304 P.3d 824; Judson v. Wheeler RV Las Vegas, LLC, 2012 UT 6, ¶¶ 22–25, 270 P.3d 456; Lund v. Brown, 2000 UT 75, ¶¶ 28–29, 11 P.3d 277.
[6] On this point, Kelley claimed in her motion for an extension to answer that she did not receive notice until she sought advice. But the district court found this claim was not credible, stating that “it seems unlikely that [Kelley] would pursue information . . . regarding service, were she unaware that the Petition to Modify had been filed.” Kelley has not challenged this finding of fact on appeal.
[7] Kelley also contends that the district court erred by not considering the four excusable neglect factors set forth in West v. Grand County, 942 P.2d 337, 340–41 (Utah 1997). But West itself made clear that those factors are neither necessary nor dispositive. Id. (explaining that situations of excusable neglect “are so varied and complex that no rule adequately addressing the relevance of all . . . facts can be spelled out” and noting that the four factors “are not dispositive” (cleaned up)). And our supreme court has reaffirmed those points in its subsequent jurisprudence. See, e.g., Jones v. Layton/Okland, 2009 UT 39, ¶ 18, 214 P.3d 859 (clarifying that a district court is “free to consider all facts it deems relevant to its decision and weigh them accordingly”). Furthermore, other supreme court opinions have not even mentioned West or its four factors in analyzing the issue of excusable neglect. See generally Sewell, 2013 UT 61; Metropolitan, 2013 UT 27; Judson, 2012 UT 6. Therefore, Kelley’s argument is unavailing.
Kelley also argues that the district court erred in its factual findings that “this matter was pending since 2013” and that she was not likely surprised by Eric’s petition due to her experience with the divorce litigation. She asserts that “the judge got the facts wrong.” As a means of explaining background, the court was commenting on the divorce litigation in relation to Eric’s petition to modify and its finding that Kelley was not surprised, not erroneously conceiving that Eric’s petition was brought in 2013. Thus, Kelley’s arguments in this regard are entirely unpersuasive.
Do you flee the country to avoid alimony? Or do you happily comply?
First, let’s discuss the “option” of fleeing the country to avoid paying alimony. It’s not really an option unless you consider obeying the law optional. In one sense, obeying the law is not optional because the law itself says so and makes provision for its enforcement by those who will not obey it. In another sense, obeying the law is not morally or ethically optional because if everyone treated obedience to law as optional and without adverse consequences for disobedience to it, we’d have anarchy, chaos, and misery.
Second, you have more options than those you listed in your question. If you are divorced and forced to pay alimony to your narcissistic ex-spouse, you not only have the options of 1) fleeing the country to avoid paying or 2) “happily complying”; you can also 3) grudgingly comply or 4) have the option of taking action in court to modify or terminate the alimony award.
The option of taking action in court to modify or terminate the alimony award is contingent on whether you can meet the legal requirements for modification. In Utah, where I practice divorce law, those requirements are either:
Unless a decree of divorce specifically provides otherwise, establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another individual, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony (and note that a party paying alimony to a former spouse may not seek termination of alimony under this provision later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another individual); or
proving that, based on a substantial material change in circumstances not foreseeable at the time of the divorce, a modification or termination of the alimony award is warranted or necessary. Regardless of whether a party’s retirement is foreseeable, the party’s retirement is a substantial material change in circumstances that is subject to a petition to modify alimony, unless the divorce decree expressly states otherwise.
In determining an alimony modification (which could include termination), the income of any subsequent spouse of the alimony payor may not be considered, with the exceptions that the court may consider the subsequent spouse’s financial ability to share living expenses, or if the court finds that the payor’s improper conduct justifies that consideration, or if the court finds some other compelling reason to do so.
Utah Family Law, LC | divorceutah.com | 801-466-9277
THE UTAH COURT OF APPEALS
MELVIN C. MCQUARRIE, Appellant and Cross-appellee,
v.
JANETTE COLLEDGE MCQUARRIE, Appellee and Cross-appellant.
Opinion No. 20170956-CA
Filed August 29, 2019
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 084904419
James A. McIntyre and Richard R. Golden, Attorneys for Appellant and Cross-appellee
Douglas B. Thayer, Andrew V. Wright, and Cole L. Bingham, Attorneys for Appellee and Cross-appellant
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.
APPLEBY, Judge:
¶1 Melvin C. McQuarrie appeals the district court’s order dismissing his counter-petition to modify a divorce decree (Decree). He argues the court erred in determining that his alimony obligation did not terminate when Janette Colledge McQuarrie remarried. Janette[1] cross-appeals, arguing the court erred in calculating her attorney fees award and in denying portions of her motion for an order to show cause why Melvin should not be held in contempt of court (Show Cause Motion). We affirm the district court’s determination that Melvin’s alimony obligation continued after Janette’s remarriage. We conclude the court abused its discretion in denying portions of the Show Cause Motion but not in calculating Janette’s attorney fees award. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
BACKGROUND
¶2 Janette and Melvin divorced in 2008, and a Decree was entered pursuant to a mediated stipulation for divorce. The Decree named Janette primary caregiver to the parties’ minor child and ordered Melvin to pay $3,000 per month in child support until the child reached “the age of 26 or so long as [the child remained] a college student, whichever occur[red] later.” A child support obligation worksheet was attached to the stipulation. In that worksheet, the parties acknowledged that Janette’s child support award was greater than the amount set by the statutory guidelines and indicated that the reason for the upward deviation was the parties’ “property settlement.”
¶3 The Decree ordered Melvin to pay “$2,000.00 per month as alimony with a cost of living increase up to 3% per annum” while child support continued. After child support terminated, alimony would be “adjusted pursuant to the sum set forth in ‘Exhibit C’ to the [parties’ stipulation], with a cost of living increase of up to 3% per annum.” Exhibit C is a spreadsheet that appears to summarize the payments and assets Janette would receive under the stipulation. It lists yearly payments from 2008 to 2039 (372 months) in each of the following categories: (1) Alimony and Child Support, (2) Taxes on Alimony, (3) Health Insurance, (4) Car Allowance, (5) Utilities and Property Taxes, and (6) House Maintenance. Exhibit C also provides sums labeled “House Value,” “New Furniture,” and “Personal Assets,” as well as a sum labeled “Total Net Present Value.” The alimony and child support category provides for a $5,000 payment in 2008, and the payment increases each year until the final payment of $12,500.40 in 2039. The Decree states that alimony will continue “until the first of any of the following occurrences: [Melvin’s] death; [t]he expiration of 372 months from the signing of the [Decree]; or [Janette’s] death.”
¶4 The Decree ordered Melvin to purchase a $1,000,000 annuity for Janette within “[t]hirty-six months after the signing of the [Decree].” Janette was “to be irrevocably designated as the beneficiary of the annuity during her lifetime with the power to designate any blood relative as the beneficiary of any death benefit provided by the annuity” and was to dictate a “payout duration in excess of fifteen years.” The Decree said it was “anticipated that the annuity [would] provide a stream of income to [Janette] for her lifetime sufficient to supplement what [Melvin] pays as alimony.” In a footnote, the Decree ordered Janette and Melvin to meet every three years “at the Hyatt Regency, or comparable hotel, in San Diego, California” “without spouses or attorneys” “to review their respective standard of living.” To maintain an “equal” standard of living, the footnote also permitted “an upward adjust[ment] of alimony . . . , but never a downward adjustment.”
¶5 Next, the Decree “divided and awarded” the parties’ property and their “marital debts and obligations.” Janette was awarded the parties’ marital house. The Decree ordered Melvin to pay various expenses related to the house, and those payments were listed in sub-paragraphs 18(a)–(g). Sub-paragraph 18(a) ordered Melvin “to satisfy the monthly payments owing on the first deed of trust,” and sub-paragraphs 18(b)–(g) ordered him to, among other things, pay the “real property taxes and homeowner’s insurance” until the first deed of trust was satisfied. But paragraph 21 provides, “Upon [Melvin’s] purchase of the annuity . . . [his] responsibility for the payments outlined in paragraph 18(b)–(g) is ordered to cease and [his] obligation with respect to those items will be at an end.” The Decree states that “[Melvin’s] payment of the first deed of trust, the real property taxes, and the homeowner’s insurance constitutes a part of the property settlement.” Janette also received an award of “one-half of [Melvin’s] 401(k) retirement benefits accrued during the parties’ marriage.”
¶6 As “part of the property settlement agreed upon by the parties,” the Decree ordered Melvin to permanently “employ [Janette] with one of his companies” and, as a benefit of that employment, the company was required to “pay for [Janette’s] health insurance premiums for as long as [she] require[d] medical insurance.” The Decree also ordered Melvin to “maintain medical insurance for the medical expenses of the [parties’] minor child” and to “pay for the minor child’s out-of-pocket costs” and “uninsured medical expenses.” The Decree ordered that if Janette incurred “medical expenses on behalf of the minor child,” she was to either “provide written verification of the cost and payment of the medical expenses she paid on the minor child’s behalf” to Melvin or make arrangements “so that [Melvin] may be billed directly.” Following the provisions dealing with medical insurance, the Decree states that “[t]he payment of [Janette’s] health insurance premiums and uncovered medical expenses constitute a portion of the property settlement.”
¶7 Many of the Decree’s provisions mention Janette’s potential remarriage, and the Decree provides that certain obligations will terminate if she remarries. For example, sub-paragraph 7(a) states that Melvin “shall not be responsible for any medical premium, prescription, out of pocket, or co-pay expense related to [Janette’s] future spouse, or spouse’s children.” (Emphasis added.) Paragraph 11 allows Janette “to designate any blood relative as the beneficiary of any death benefit provided by the annuity,” but “in the event she remarries, she may not designate her spouse or his children as beneficiaries.” (Emphasis added.) Paragraph 28 provides, “In the event [Janette was] unmarried, commencing in 2011, and every five years thereafter so long as [Janette] remain[ed] single, [Melvin was] ordered to purchase or lease for [her] . . . a model year 2012 Cadillac Escalade, or equivalent.” (Emphasis added.) Under paragraph 19, “should [Janette] remarry,” Melvin shall “continue to pay the first deed of trust until it is paid in full” but he will be “relieved of any and all obligations to pay and maintain the items in . . . sub-paragraphs 18(b)–(g).” (Emphasis added.) Finally, paragraph 29 provides that the parties cannot divest assets to a future spouse, and paragraph 30 prohibits the disclosure of any settlement or of the terms of the Decree to future spouses. The Decree does not contain a separate provision addressing whether Melvin’s alimony obligation would terminate or continue if Janette remarried.
¶8 Janette remarried in 2014. That year, she filed a petition to modify the Decree (Petition to Modify) based on Melvin’s alleged fraud. She claimed Melvin did not disclose certain assets and “misrepresented the value of the marital home . . . for purposes of inducing her to enter into the property settlement.” Janette also filed the Show Cause Motion, asserting Melvin should be held in contempt of court for, among other things, failing to pay a cost of living increase on the alimony award, Janette’s “uncovered” and “out-of-pocket medical expenses,” and “one-half of [his] 401(k),” and for failing to purchase the $1,000,000 annuity.
¶9 Melvin filed a counter-petition to modify (Counter-petition). He asserted Janette’s remarriage constituted “a substantial and material change in the parties’ circumstances” that justified terminating his alimony obligation. Specifically, he argued that alimony terminated as a matter of law upon Janette’s remarriage because the Decree did not “specifically provide otherwise.” See Utah Code Ann. § 30-3-5(9) (LexisNexis Supp. 2018) (“Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.”).
¶10 After a hearing, a court commissioner entered a recommendation on the Petition to Modify, the Show Cause Motion, and the Counter-petition. To start, the commissioner recommended denying Melvin’s request to terminate alimony. The commissioner reasoned, “[A]lthough the decree does not state alimony will not terminate upon remarriage, the Decree is clear on its face considering all the other references to remarriage in the other provisions . . . that the parties intended for alimony to survive remarriage.”
¶11 Next, the commissioner addressed the Show Cause Motion, beginning with the cost of living adjustment to alimony. First, the commissioner concluded that the alimony provisions established “a cost of living increase of up to 3% per annum (and never downward),” but that the actual increase was “to be determined by the Consumer Price Index [(CPI)].” Second, the commissioner concluded “the Decree does not require [Melvin] to pay for [Janette’s] out of pocket medical costs.” Third, the commissioner found “the payment of half of [Melvin’s] 401(k) account ha[d] been satisfied . . . by [Melvin’s] payment to [Janette] in the amount of $8,885.52.” Fourth, because Melvin did not purchase the annuity within thirty-six months of the entry of the Decree, the commissioner recommended that Janette receive “a judgment in an amount sufficient to compensate her for the loss of the stream of income, past and future, from the ordered annuity.” But if Melvin purchased “an annuity which pa[id] $6,728.63 per month for 140 months,” the commissioner concluded “his purchase of the annuity [would] satisfy the judgment entered against him.” The commissioner also concluded that Melvin should receive “credit against the annuity judgment for payments he made . . . (that [Janette] would have otherwise been paying herself out of the stream of income from the annuity) . . . past the date that the annuity should have been purchased.”
¶12 Janette filed an objection to the commissioner’s recommendation. First, she claimed the cost of living adjustment to alimony should “be a straight 3% each year,” regardless of the CPI. Second, she asserted Melvin should not receive credits against his annuity obligation for payments listed in subparagraphs 18(b)–(g) of the Decree because those payments “were to continue until [he] purchased the annuity—which he did not do.” She objected to the recommended amount for Melvin’s annuity obligation, claiming the written recommendation differed from what the commissioner orally recommended at the hearing. Third, she argued that Melvin had not paid her half the value of his 401(k) account. Fourth, she asserted Melvin should pay her out-of-pocket medical expenses because “the Decree clearly states that [Melvin’s] payment of [Janette’s] health insurance premiums and uncovered medical expenses constitute a portion of the property settlement.”
¶13 After a period of discovery, Janette filed a motion to limit issues for trial. While that motion was pending, Melvin filed a motion for partial summary judgment on his claim that alimony terminated as a matter of law when Janette remarried because the Decree did not “specifically provide otherwise.” The court scheduled a hearing on the motion to limit issues for trial, and the court commissioner scheduled a hearing on the motion for partial summary judgment.
¶14 At the hearing on the motion to limit issues for trial, the district court told the parties it wanted to “simply have a discussion” about the case. It explained that the parties’ stipulation that “made the basis of the [Decree was] going to be followed” and the only issue worth pursuing in the case was “the possibility of the allegation of fraud.” The court determined that alimony did not terminate upon Janette’s remarriage because the Decree “could be fairly read and interpreted that the parties either negotiated away—or clearly understood . . . what those alimony provisions were.” And “[e]ven though they may have been characterized as . . . alimony, when you look at the way they were treated, . . . it clearly looks to be . . . that it was a—in a way, a property settlement agreement.” The court also said “you could interpret [the Decree] to read the parties specified, clearly, the terms of—as it relates to the alimony and waived, knowingly, the statutory benefit that they would have had on the issue of remarriage.”
¶15 The court also expressed skepticism toward the merits of the Petition to Modify. It said, “I don’t have any indications of all the facts or the evidence, but I don’t see any fraud here. Okay? There was negotiation and understanding with respect to what the settlement agreement was.” But “[i]f there really was two or three items left out of this property agreement,” the court explained, “whether they were left out intentionally, on purpose, [or] negligently, . . . fairness and equity would clearly require that they be looked at.” Janette responded that she was “willing to waive that claim altogether” and then said, “that leaves us—there’s nothing else to decide . . . other than the issue of fees.”
¶16 Melvin informed the court that a summary judgment motion on “the issue of remarriage and the fact that the [Decree] does not specifically provide that alimony doesn’t terminate upon remarriage . . . [was] before the commissioner [the following] week.” After acknowledging the commissioner’s order determining that alimony did not terminate upon remarriage—which was signed by the district court—Melvin said he would “like to have [the commissioner] have the opportunity to make a recommendation” with “the benefit of the [new] briefing that’s involved . . . [and] there are several more recent Utah Court of Appeals and Supreme Court cases that bear on the issue.” The court responded, “If you want to try to get a second bite at the apple and convince [the commissioner], that’s fine.”
¶17 But the court concluded that it was “ready to issue an order of dismissal”[2] and saw no “need to set trial,” and turned to address Janette’s request for attorney fees. The court determined she was entitled to fees “that relate to the enforcement in the first place and the requirement for [Melvin] to give the annuity and to comply with the other terms and provisions” of the Decree. Specifically, the court found that Janette was the prevailing party on the Show Cause Motion, explaining that “the hearings brought up such quick decisions . . . [b]ecause [Melvin] was not in compliance with the [Decree].” But the court said it would view other fees “with some skepticism” because both parties “lost on [their petitions to modify] with respect to not being able to prove a substantial material change in circumstances.”
¶18 Although the district court dismissed the case, the court commissioner nevertheless held a hearing on Melvin’s motion for partial summary judgment and recommended that the motion be denied. Melvin filed an objection to the commissioner’s recommendation, asserting again that Utah Code section 30-3-5(9) required termination of his alimony obligation. The court rejected Melvin’s objection to the recommendation and entered an order denying his motion for summary judgment.
¶19 The court then entered an order memorializing its verbal dismissal of the Petition to Modify and the Counter-petition. It found “that the Stipulation and Decree between the parties [would] be followed as written.” And after reviewing “all the language in the Decree,” it concluded the alimony provisions “were not something that would be terminated or eliminated based upon the remarriage of [Janette].” That is, it found “that the Decree language specifically provides that the alimony/child support payments would continue beyond remarriage and were structured to provide the appropriate division of the marital assets to [Janette].” The order also stated the court would “award [Janette’s] attorney’s fees regarding her attempts to enforce the Decree’s terms” and requested that Janette “submit the required affidavit on [her] attorney’s fees.”
¶20 After the petitions had been dismissed, Janette filed a request to submit for decision her objection to the commissioner’s recommendation on the Show Cause Motion. The court denied Janette’s objection. It explained, “[T]he recommendation signed by the commissioner and the court is the order that will be complied with by the parties as the court has not found the commissioner erred as a matter of law and the court independently agrees with the decision made by the commissioner.”
¶21 Janette submitted an attorney fees declaration that claimed she incurred $302,602 in attorney fees throughout the case with $275,659 “incurred in [her] efforts to enforce the terms of the [Decree]” and $61,448 relating “to the prosecution of [the Show Cause Motion].” Janette then filed a proposed order with an award of $275,659 in attorney fees. The court responded with a notice titled “Not Signed Order (Proposed) Awarding Attorney Fees and Costs.” The notice stated that “the only fees that [would] be awarded [were] those the court already so stated for the [Show Cause Motion].” Janette then filed a second proposed order with an award of $61,448 in attorney fees. Again, the court refused to sign the proposed order and noted, “These fees are not reasonable for an [order to show cause] hearing before the commissioner and then the court.[3] The court will issue a ruling on the amount to be awarded.”
¶22 The court entered an order awarding Janette $9,480 in attorney fees. The order provided, “While both parties prevailed on some issues and were less successful on others, [Janette] was the prevailing party in relation to the prosecution of [the Show Cause Motion].” And “having conducted a review of the entries attached to the [attorney fees affidavit],” the court concluded that $9,480 “incurred in fees was reasonable and necessary in relation to the prosecution of the [Show Cause Motion].”
¶23 Melvin appeals; Janette cross-appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Melvin argues the district court erred in determining that his alimony obligation survived Janette’s remarriage. This issue requires us to review the court’s interpretation of the Decree as well as its interpretation and application of Utah Code section 30-3-5(9). “Interpretation of a divorce decree presents a question of law, which is reviewed for correctness.” Gardner v. Gardner, 2012 UT App 374, ¶ 14, 294 P.3d 600. “The proper interpretation and application of a statute is [also] a question of law which we review for correctness.” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified).[4]
¶25 Janette cross-appeals, raising two issues. First, she argues “the district court erred in denying portions of [the Show Cause Motion]” by misinterpreting and misapplying the Decree. “An order relating to contempt of court is a matter that rests within the sound discretion of the district court.” Wolferts v. Wolferts, 2013 UT App 235, ¶ 8, 315 P.3d 448 (quotation simplified). “In the absence of any action by the [district] court which is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion, we will not overturn the [district] court’s order.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539 (quotation simplified). “We review the district court’s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (quotation simplified).
¶26 Second, Janette argues the district court erred in awarding her only $9,480 in attorney fees. “We review a [district] court’s decision regarding attorney fees in a divorce proceeding for an abuse of discretion.” Jensen v. Jensen, 2008 UT App 392, ¶ 8, 197 P.3d 117.
ANALYSIS
Alimony
¶27 Melvin argues his alimony obligation automatically terminated upon Janette’s remarriage because the Decree did not “specifically provide otherwise.” See Utah Code Ann. § 30-3-5(9) (LexisNexis Supp. 2018). We disagree.
¶28 “Alimony is presumed to terminate upon the remarriage of the receiving spouse.” Johnson v. Johnson, 855 P.2d 250, 252 (Utah Ct. App. 1993). Utah courts have long recognized this presumption, see, e.g., Austad v. Austad, 269 P.2d 284, 290 (Utah 1954) (“[T]here is implicit in the divorce decree the provision that the alimony continues only so long as the [receiving spouse] remains unmarried.”), and it is now codified in Utah Code section 30-3-5(9). That provision provides, “Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse.” Utah Code Ann. § 30-3-5(9).
¶29 Here, the Decree was entered by default “pursuant to the terms set forth in” Melvin and Janette’s “mediated stipulation for divorce.” “[I]n the context of a divorce, parties are generally bound by their stipulations.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232. “Accordingly, we interpret [the Decree] according to established rules of contract interpretation.” Id. (quotation simplified). “The underlying purpose in interpreting a contract is to ascertain the intentions of the parties to the contract.” Id. (quotation simplified). To do that, “we look to the plain meaning of the contractual language, and we consider each contract provision in relation to all of the others, with a view toward giving effect to all and ignoring none.” Id. (quotation simplified).
¶30 The Decree does not identify Janette’s remarriage as an event that will terminate Melvin’s obligation to pay alimony. Instead, paragraph 10 orders Melvin to make alimony payments “until the first of any of the following occurrences: [Melvin’s] death; [t]he expiration of 372 months from the signing of the [Decree]; or [Janette’s] death.” As Janette notes in her brief, “‘the specification of terms in a contract implies the exclusion of all not expressed.’” (Quoting 17A C.J.S. Contracts § 415.) And absent the statute, we would infer that the parties intended alimony to survive Janette’s remarriage based on their decision to omit remarriage from paragraph 10’s list of terminating events. See Martin v. Rasmussen, 2014 UT App 200, ¶ 18, 334 P.3d 507 (“This court will not rewrite a contract to supply terms which the parties omitted.” (quotation simplified)). But our precedent establishes that paragraph 10, without more, does “not provide for an exception to the general rule.” See Lord v. Shaw, 682 P.2d 853, 855 (Utah 1984) (determining that a divorce decree stating “alimony is to run for a period of three years” did “not provide for an exception to the general rule that alimony terminates upon remarriage”), disavowed on other grounds by Bailey v. Sound Lab, Inc., 694 P.2d 1043 (Utah 1984); see also Eames v. Eames, 735 P.2d 395, 398–99 (Utah Ct. App. 1987) (Orme, J., dissenting in part) (rejecting the “frivolous” argument that language in a divorce decree providing “alimony would continue until [the receiving party] reached 65” without referring to “earlier termination upon . . . remarriage” “might be deemed to mean the decree had ‘specifically provided otherwise’ and required alimony to be paid until age 65 regardless of whether [the receiving party] remarried” (quotation simplified)).
¶31 Nevertheless, our analysis must consider paragraph 10 “in relation to” each of the Decree’s other provisions, “with a view toward giving effect to all and ignoring none.” See Thayer, 2016 UT App 146, ¶ 17 (quotation simplified). And based on our review of the Decree “as a whole,” we conclude that its language specifically provides that alimony would survive Janette’s remarriage. See id. For example, paragraphs 19 and 28 state that certain payments—the car allowance and various expenses related to the marital house—would terminate upon Janette’s remarriage. These provisions strengthen an inference that the parties intentionally omitted remarriage from paragraph 10.
¶32 We also find it significant that paragraph 10 includes Janette’s death as a terminating event. The statute creates a presumption that alimony “terminates upon the remarriage or death” of the receiving spouse. Utah Code Ann. § 30-3-5(9) (emphasis added). If the parties intended alimony to terminate either upon Janette’s death or remarriage, the reasonable action would have been to allow the statute to govern either event or include them both in paragraph 10. Indeed, listing Janette’s death as a terminating event would have been unnecessary under those circumstances, and it seems the parties’ decision to do so would be rendered meaningless if we were to conclude that alimony also terminated upon Janette’s remarriage. The rules of contract interpretation dictate that we avoid such a result. See Fisher v. Davidhizar, 2018 UT App 153, ¶ 16, 436 P.3d 123 (“In interpreting a contract, . . . we look for a reading that harmonizes the provisions and avoids rendering any provision meaningless.” (quotation simplified)).
¶33 Further, footnote 4 orders Melvin and Janette to meet every three years—without spouses—“to review their respective standard of living” and potentially adjust alimony upward to comply with the order that “the standard of living . . . be equal.” (Emphasis added.) The same footnote prohibits Janette and Melvin from “sharing any documentation or making any disclosure regarding the [parties’ stipulation] with future spouses,[5] [or] spouses’ children.” (Emphasis added.) We cannot ignore this provision, which orders the parties to discuss and potentially adjust alimony even after Janette’s potential remarriage.
¶34 Melvin attempts to diminish footnote 4’s significance by claiming our interpretation “requires [us] to assume that one of the spouses would be [Janette’s] spouse.” That is, he asserts “it is equally logical that over a period of more than thirty years [Melvin] might remarry more than once and thus have [multiple] spouses who would be excluded from the meeting or from knowledge of the negotiations.” This argument is not well taken. Although Melvin possibly could have a current spouse as well as multiple former spouses at the time of the triennial review, we do not assume that the parties anticipated Melvin having multiple spouses at the same time. Instead, the only reasonable interpretation of this provision establishes that the spouse of each party who is married at the time of the review is prohibited from attending. And because footnote 4 contemplates the parties discussing alimony during the triennial review, it shows a clear intent that those payments would not terminate upon Janette’s remarriage. Moreover, any other interpretation would render this provision meaningless.
¶35 As outlined above, see supra ¶ 7, the Decree is replete with references to future spouses. The Decree’s provisions delineate obligations, but they expressly exclude a future spouse or that spouse’s children. Janette is allowed to designate a beneficiary for a required annuity, but she expressly may not designate a future spouse or that spouse’s children. The requirement for Melvin to pay off the marital house’s mortgage continues even if Janette remarries. Finally, the Decree prohibits divestiture of assets or the disclosure of the terms of the Decree to a future spouse. These provisions lead us to conclude that the parties considered Janette’s potential remarriage and specifically agreed on how that event would affect their respective rights and obligations under the Decree. Accordingly, the only “reasonable” interpretation of the Decree as a whole is that alimony terminates only as expressly provided in paragraph 10. See Peirce v. Peirce, 2000 UT 7, ¶ 19, 994 P.2d 193 (“[W]e interpret the terms of a contract in light of the reasonable expectations of the parties, looking to the agreement as a whole and to the circumstances, nature, and purpose of the contract.” (emphasis added)).
¶36 Therefore, we conclude that Melvin’s alimony obligation did not automatically terminate upon Janette’s remarriage, because the Decree “specifically provides otherwise,” Utah Code Ann. § 30-3-5(9), and we affirm the district court’s dismissal of Melvin’s petition to terminate alimony.
Show Cause Motion
¶37 The Show Cause Motion asked the district court to hold Melvin in contempt of court for not complying with various provisions of the Decree. Janette argues the court “erred in denying portions of [the Show Cause Motion] because it failed to interpret and give the terms of the Decree the effect the plain language called for.”
¶38 “Disobedience of any lawful judgment or order of the court is contempt of the authority of the court.” Clarke v. Clarke, 2012 UT App 328, ¶ 24, 292 P.3d 76 (quotation simplified); see also Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). To “prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Clark, 2012 UT App 328, ¶ 24 (quotation simplified). “Once the court finds a person in contempt, it may then elect to impose an appropriate sanction.” Gardner v. Gardner, 2012 UT App 374, ¶ 32, 294 P.3d 600. An appropriate sanction may include monetary damages “if an actual loss or injury to a party in an action is caused by the contempt.” In re Cannatella, 2006 UT App 89, ¶ 7, 132 P.3d 684 (quotation simplified).
¶39 “The rule of damages in a contempt case is the same as if the party were being proceeded against directly on the underlying obligation.” Bradshaw v. Kershaw, 627 P.2d 528, 532 (Utah 1981). The court’s order should seek to compensate the aggrieved party for the “actual loss or injury” caused by the contempt. Utah Code Ann. § 78B-6-311(1) (allowing courts to “order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses”); see also Goggin v. Goggin, 2013 UT 16, ¶ 37, 299 P.3d 1079 (“Because these awards compensated [the aggrieved party] for the actual loss or injury that [the contempt] caused, they were proper under the Contempt Statute.” (quotation simplified)). Further, the court’s calculation of damages should be supported by evidence of the aggrieved party’s loss. See Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342 P.3d 1127 (explaining that the evidence must “provide a reasonable, even though not necessarily precise, estimate of damages” (quotation simplified)).
¶40 Janette raises four issues regarding the Show Cause Motion. First, she challenges the court’s conclusion that Melvin was not required “to pay [her] out of pocket medical expenses.” Second, she claims the court erred in determining that the yearly cost of living increase to Melvin’s alimony obligation “could be less than 3%.” Third, she contends the court provided Melvin with a “windfall” by not requiring him to purchase an annuity that complied with “the terms of the annuity [he] was obligated to purchase” and by awarding him credit against the annuity judgment to which he was not entitled. Fourth, she argues the court erred in determining “Melvin satisfied his obligation to pay [her] half of his 401(k).” We address each argument in turn.
Out-of-Pocket Medical Costs
¶41 In the Show Cause Motion, Janette moved the district court to hold Melvin in contempt for refusing to “pay for all of [her] uncovered medical expenses.” The court denied her motion after determining the Decree did not require Melvin to make any such payment. Janette argues the court’s decision was “contrary to the Decree’s plain and unambiguous language.” We disagree.
¶42 “We interpret a divorce decree according to established rules of contract interpretation.” Moon v. Moon, 1999 UT App 12, ¶ 18, 973 P.2d 431 (quotation simplified). “The underlying purpose in interpreting a contract is to ascertain the intentions of the parties to the contract. To ascertain the parties’ intentions, we look to the plain meaning of the contractual language, and we consider each contract provision in relation to all of the others.” Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation simplified).
¶43 A review of the Decree “as a whole” leads us to conclude that Melvin was not required to pay for Janette’s personal out-of-pocket medical costs. Paragraph 7 of the Decree orders Melvin to employ Janette with one of his companies and requires that company to “pay for [her] health insurance premiums for so long as [she] requires medical insurance.” Paragraph 7 does not state that Melvin must pay any of Janette’s out-of-pocket costs. In contrast, paragraph 6 orders Melvin to “maintain medical insurance for the medical expenses of the [parties’] minor child . . . through [his] employment” and “pay for the minor child’s out-of-pocket costs of the premium for the child’s portion of the insurance.” (Emphasis added.) Paragraph 6 also requires Melvin to “pay for the minor child’s reasonable and necessary uninsured medical expenses, including deductibles and co-payments, incurred for the parties’ minor child.” (Emphasis added.) Under sub-paragraph 6(a), Janette must provide Melvin with written verification of any medical expenses “[she] incurs on behalf of the minor child . . . within 30 days of payment” or make arrangements “so that [Melvin] may be billed directly.” Janette’s argument relies on sub-paragraph 7(b), which provides that “[t]he payment of [Janette’s] health insurance premiums and uncovered medical expenses constitute a portion of the property settlement.” (Emphasis added.)
¶44 Because the Decree includes the child’s out-of-pocket costs in paragraph 6 and omits Janette’s out-of-pocket costs from paragraph 7, it seems the parties intended that Melvin be responsible only for the out-of-pocket medical expenses incurred for the child’s benefit—not those incurred for the benefit of Janette. See Fisher v. Davidhizar, 2018 UT App 153, ¶ 16, 436 P.3d 123 (explaining that “we look for a reading that harmonizes the provisions and avoids rendering any provision meaningless” (quotation simplified)). If the parties intended to require Melvin to pay Janette’s out-of-pocket medical costs, they would have expressed such intent in paragraph 7. Pioneer Builders Co. of Nevada Inc. v. K D A Corp., 2018 UT App 206, ¶ 13, 437 P.3d 539 (“The cardinal rule in contract interpretation is to give effect to the intentions of the parties as they are expressed in the plain language of the agreement itself.” (quotation simplified)). Sub-paragraph 7(b) does not alter the result. The only “uncovered medical expenses” the Decree orders Melvin to pay are those incurred on behalf of the child. Thus, we see no reason to conclude that Janette’s personal out-of-pocket expenses were meant to be included among the expenses mentioned in sub-paragraph 7(b).
¶45 In sum, we reject Janette’s argument that “the Decree’s plain and unambiguous language” requires Melvin to pay Janette’s own uncovered medical expenses. Accordingly, we affirm the district court’s decision to deny Janette’s motion to hold Melvin in contempt for refusing to pay for those costs.
Annual Adjustments to Alimony
¶46 Janette argues the district court erred in determining that the yearly cost of living increase to Melvin’s alimony obligation “could be less than 3%.” We disagree. The Decree orders Melvin to pay alimony, “with a cost of living increase of up to 3% per annum (based upon the CPI, but never to be less than the present amount being paid).” (Emphasis added.) This unambiguous language does not support Janette’s argument that the yearly increase must be at least 3%. See Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language.” (quotation simplified)). That is, stating that the increase will be up to 3% leaves open the possibility that the increase may be lower than 3%. Janette argues that Exhibit C to the parties’ stipulation shows that alimony was to increase at a fixed rate of 3% per year because the yearly payments for “Alimony/Child Support” listed on Exhibit C increase by 3% each year. But the Decree is clear. It sets a flexible standard for the yearly increase to allow the parties to “equalize” their respective standards of living. For example, footnote 4 allows the parties to “include an upward adjustment to alimony beyond the CPI.” Thus, the amounts listed in Exhibit C are merely estimates.
¶47 In short, we see no support for Janette’s contention that the yearly increase to alimony must be at least “a flat 3% per year.” Accordingly, the court’s “interpretation of the [Decree] was [not] erroneous as a matter of law,” and Janette has therefore failed to “convince us that the [district] court committed error.” See Christensen v. Christensen, 2018 UT App 53, ¶ 5, 420 P.3d 106 (quotation simplified).
Melvin’s Annuity Obligation
¶48 The Decree ordered Melvin to purchase Janette a $1,000,000 annuity within thirty-six months of the entry of the Decree. It is undisputed that Melvin did not purchase the annuity within that period. Accordingly, the district court entered a judgment against Melvin “in an amount sufficient to compensate [Janette] for the loss of the stream of income, past and future, from the ordered annuity.” The order allowed Melvin to “satisfy the judgment entered against him” by purchasing “an annuity which pays $6,728.63 per month for 140 months.” The court also awarded Melvin “credit against the annuity judgment for payments he made to [Janette] for [her] benefit (that [she] would have otherwise been paying herself out of the stream of income from the annuity) past the date that the annuity should have been purchased.”
¶49 Janette argues the court abused its discretion by not requiring Melvin to purchase an annuity that complied with “the terms of the annuity [he] was obligated to purchase” and by awarding him credit against the annuity judgment to which he was not entitled. This argument has merit. Because the evidence does not support the district court’s order, see Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342 P.3d 1127 (explaining that the evidence must “provide a reasonable, even though not necessarily precise, estimate of damages” (quotation simplified)), and does not compensate Janette for the “actual loss or injury” that Melvin caused her by failing to timely purchase the annuity, see Utah Code Ann. § 78B-6-311(1) (LexisNexis 2018) (allowing courts to “order the person proceeded against to pay the party aggrieved a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses”), we conclude the court’s ruling amounted to an abuse of discretion.
¶50 First, the evidence does not support the court’s decision to award Melvin “credits toward the annuity price” for making the payments listed in sub-paragraphs 18(b)–(g) “past the date that the annuity should have been purchased.” Sub-paragraphs 18(b)–(g) ordered Melvin to pay various expenses related to the marital house. But paragraph 21 states, “Upon [Melvin’s] purchase of the annuity . . . , [his] responsibility for the payments outlined in paragraph 18(b)–(g) is ordered to cease.” Thus, Melvin was obligated to make the payments listed in sub-paragraph 18(b)–(g) until he purchased the annuity. Because it is undisputed that Melvin did not timely purchase the annuity, it follows that his obligation to make those payments did not “cease” at the time the annuity should have been purchased. Accordingly, we see no evidentiary basis for the court’s decision to grant Melvin credit against the annuity judgment for payments made under sub-paragraphs 18(b)–(g) “past the date the annuity should have been purchased.” And we conclude that doing so amounted to an abuse of discretion. See Gardner v. Gardner, 2012 UT App 374, ¶ 33, 294 P.3d 600 (“[A]ny award of damages must be based on something more than mere speculation.”).
¶51 Second, we agree with Janette that the district court abused its discretion by allowing Melvin to satisfy the judgment against him by purchasing an annuity that (1) did not list Janette as the irrevocable beneficiary, (2) had a term fewer than fifteen years, (3) was less than the face value of the annuity he was obligated to purchase under the Decree, and (4) did not account for the loss in value Janette incurred by Melvin failing to purchase the annuity in a timely fashion. Although the court concluded Janette was entitled to “a judgment in an amount sufficient to compensate her for the loss of the stream of income, past and future, from the ordered annuity,” its order allowed Melvin to satisfy that judgment without compensating Janette for the “actual loss or injury” that resulted from him not fulfilling his obligations under the Decree. See Utah Code Ann. § 78B-6-311(1).
¶52 The Decree ordered Melvin to purchase an annuity of $1,000,000 and required its “payout duration” to be “in excess of fifteen years.” Further, Janette was to “be irrevocably designated as the beneficiary of the annuity during her lifetime with the power to designate any blood relative as the beneficiary of any death benefit provided by the annuity.” In direct conflict with those terms, the court’s order allowed Melvin to “satisfy the judgment entered against him for the annuity” by purchasing “an annuity which pays $6,728.63 per month for 140 months”—a total of $942,008 paid over a period of less than twelve years. Further, the order did not satisfy the Decree’s requirement that Janette “be irrevocably designated as the beneficiary of the annuity.” Accordingly, we see no evidentiary basis for the court’s order, and we agree with Janette that the court abused its discretion by allowing Melvin a “windfall as a result of his own breach.” See Valerios Corp., 2015 UT App 4, ¶ 24 (explaining that the evidence must “provide a reasonable, even though not necessarily precise, estimate of damages” (quotation simplified)).
¶53 Because we see no evidence supporting the court’s calculation of damages for Melvin’s failure to timely purchase the annuity, we conclude its actions amount to “a clear abuse of discretion.” Gardner, 2012 UT App 374, ¶ 14 (quotation simplified). Accordingly, we reverse its order and remand for further proceedings. On remand, the court should enter a judgment against Melvin that adequately compensates Janette for the “actual loss or injury” caused by Melvin’s failure to purchase the annuity within thirty-six months after the Decree was entered. See Utah Code Ann. § 78B-6-311(1).
401(k)
¶54 Janette argues the district court erred in determining that Melvin had “satisfied his obligation to pay [Janette] half of his 401(k).” We are not persuaded.
¶55 The Decree awarded Janette “one-half of [Melvin’s] 401(k) retirement benefits accrued during the parties’ marriage.” Paragraph 16 provided for an “appropriate Qualified Domestic Relations Order[6] securing [Janette’s] interest in said retirement plan,” but Melvin was “ordered to try and have the account divided equally without the necessity of a QDRO.” In its recommendation, the court commissioner found that “the payment of half of [Melvin’s] 401(k) account ha[d] been satisfied . . . by [his] payment to [Janette] in the amount of $8,885.52.” The district court approved the commissioner’s determination.
¶56 Janette challenges the court’s decision. She starts by claiming Melvin’s “401(k) had a balance of $37,612.62” when the Decree was entered on November 21, 2008. According to Janette, Melvin “waited until February 20, 2009, to liquidate the account”—about three months after the Decree was entered— when “the account’s balance had allegedly dropped from $37,612.62 to approximately $17,771.04.” Janette then argues that because the Decree ordered Melvin to pay her one-half of the account’s balance when the Decree was entered (which she claims was $18,803.31), she was entitled to “a judgment against [Melvin] in the amount of $9,922.79; i.e., the difference between the amount received and half of the account’s balance when the Decree was entered.”
¶57 Janette has failed “to carry [her] burden of persuasion on appeal.” See Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d 196 (quotation simplified). First, the record does not support Janette’s assertion that the 401(k)’s balance was $37,612.62 when the Decree was entered. Her brief cites an account summary for the period of October 1, 2008, through December 31, 2008, that lists a “total value” of $37,612.62 on October 1, 2008, and a “total value” of $28,904.27 on December 31, 2008. But because the Decree was not entered until November 28, 2008, the account summary does not reveal the account’s balance at the time the Decree was entered. The account summary supports the district court’s finding that the balance was declining because “the market had tanked,” and it shows that the “total value” of the 401(k) when the Decree was entered was likely between $37,612.62 (value as of October 1) and $28,904.27 (value as of December 31). Further, the account summary divides the “total value” into two categories: “employee money” and “employer money.” It states that the “employer account balance may not [have been] 100% vested” and “if [Melvin] terminate[d] employment, [he] might not [have] receive[d] all of the money [his] employer [had] contributed to the plan.” The “employee money” was $28,173 on October 1, 2008, and $21,650.32 on December 31, 2008. Accordingly, the record shows that the amount of “employee money” in Melvin’s 401(k) when the Decree was entered was between $21,650.32 and $28,173; not, as Janette claims, $37,612.62.
¶58 Second, Janette has not convinced us that the court abused its discretion in concluding that Melvin satisfied his obligation to pay her half of the 401(k) with the $8,885.52 payment. Below, Melvin argued that “due to the rapidly declining value of the mutual funds in which the 401(k) was invested, the parties agreed to try and divide the account equally without the necessity of a QDRO by liquidating the account.” And he asserted that when the 401(k) was liquidated, “a direct deposit was made into [his] account in the amount of $18,421.13.” He “paid the mandatory 10% penalty of $1,842 which yielded a balance of $8,289.52 each.” Thus, Melvin claimed that he actually “over-paid Janette by $595.95” because she received $8,885.52 when “[her] one-half of the 401(k) was only $8,289.57.”
¶59 The court commissioner accepted Melvin’s argument, finding that Melvin “took the check that he got” for “the reduced value of the 401(k) after the market had tanked, divided that in half, and gave half of the remaining value to [Janette].” The commissioner even found that Melvin paid “some taxes on—on the withdrawal, but those were not taken out of [Janette’s] share.” Based on those findings, the commissioner concluded that Janette had “been made whole by [Melvin] paying her [$8,885.52].” Janette has not shown that this conclusion was in error. As far as we can tell, Melvin complied with the Decree’s order to divide the 401(k) equally between the parties by liquidating the account and paying Janette half of what he received.
¶60 We conclude that the court’s order was not “so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion,” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539 (quotation simplified), and we affirm the court’s determination that Melvin satisfied his obligation to pay Janette one-half of his 401(k) benefits accrued during the parties’ marriage.
III. Attorney Fees
¶61 Janette argues “the district court erred by arbitrarily reducing [her] attorney fee award.” We disagree.
¶62 “Utah Code section 30-3-3(2) authorizes an award of costs and attorney fees ‘in any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case’ upon the court’s determination ‘that the party substantially prevailed upon the claim or defense.’” Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 13 (quoting Utah Code Ann. § 30-3-3(2) (LexisNexis Supp. 2018)). Fees awarded under section 30-3-3(2) “serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶ 30, 233 P.3d 836. “In other words, when one party refuses to comply with a court order, thereby compelling another party to seek its enforcement, that party risks liability for the fees and costs accrued in the enforcement proceeding.” Wollsieffer, 2019 UT App 99, ¶ 13.
¶63 “Both the decision to award attorney fees and the amount of such fees are within the [district] court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476 (quotation simplified). But in fixing the amount of reasonable fees, the court should consider (1) the legal work “actually performed,” (2) the amount of work that was “reasonably necessary to adequately prosecute the matter,” (3) whether the attorney’s billing rate is “consistent with the rates customarily charged in the locality for similar services,” and (4) any “circumstances which require consideration of additional factors.” Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah 1988).
¶64 Here, the district court awarded Janette attorney fees “regarding her attempts to enforce the Decree’s terms” and said, “While both parties prevailed on some issues and were less successful on others, [Janette] was the prevailing party in relation to the prosecution of [the Show Cause Motion].” The court explained further that the Show Cause Motion “brought up such quick decisions . . . [b]ecause [Melvin] was not in compliance with the [D]ecree.” We see no abuse of discretion in the district court’s decision to award attorney fees to Janette only for her efforts to prosecute the Show Cause Motion. See Neff v. Neff, 2011 UT 6, ¶¶ 70–71, 247 P.3d 380 (explaining that a court’s “decision about who prevailed” should be “based on an approach that [is] flexible and reasoned” and highlighting “the importance of . . . common sense”). In prosecuting that motion, Janette successfully enforced the Decree by showing that Melvin failed to timely purchase the annuity. Thus, it was reasonable for the court to award her attorney fees “accrued in [that] enforcement proceeding.” See Wollsieffer, 2019 UT App 99, ¶ 13.
¶65 Janette submitted an attorney fees affidavit detailing the fees she incurred in the case. The affidavit claimed “$275,659.00 was incurred in [her] efforts to enforce the terms of the [Decree]” and, of that amount, $61,448 was incurred in “the prosecution of [the Show Cause Motion].” Based on that affidavit, Janette filed a proposed order with an award of $275,659 in attorney fees. After the court rejected this amount, Janette requested an award of $61,448. But the court determined that those “fees [were] not reasonable for an [order to show cause] hearing before the commissioner and then the court.” After reviewing Janette’s attorney fees affidavit, the court determined $9,480 “incurred in fees was reasonable and necessary in relation to the prosecution of [the Show Cause Motion]” and entered an order reflecting that amount.
¶66 The district court’s fees award does not constitute an abuse of discretion. Janette requested $61,448 in fees, but the record reveals that the court concluded such an amount was not “reasonably necessary to adequately prosecute” the Show Cause Motion. See Dixie State Bank, 764 P.2d at 990. We cannot say such a conclusion was “beyond the limits of reasonability.” See Strohm v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 52, 308 P.3d 424 (quotation simplified). As the court explained, Janette prevailed on the Show Cause Motion because Melvin simply “was not in compliance with the Decree.” Janette may believe that $9,480 is insufficient for her enforcement efforts, but “the amount itself does not prove that the trial court abused its discretion.” Prince v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 55, 56 P.3d 524. And although Janette argues that “this matter has been heavily contested and aggressively litigated by both parties,” a district court “is in a better position than an appellate court to gauge the quality and efficiency of the representation and the complexity of the litigation.” Strohm, 2013 UT 21, ¶ 52 (quotation simplified). Accordingly, we affirm the district court’s award of attorney fees to Janette because we are not convinced that the award amounted to “patent error or clear abuse of discretion.” See Dixie State Bank, 764 P.2d at 989 (quotation simplified).
¶67 We note, however, that our remand of the annuity issue may affect Janette’s attorney fees award. As the prevailing party on the Show Cause Motion, Janette is entitled to fees on remand reasonably incurred enforcing the Decree’s terms. Further, because Janette received attorney fees for enforcing the Decree below and she has substantially “prevailed on the main issues on appeal,” she is entitled to attorney fees incurred for enforcing the Decree on appeal. See Oliekan v. Oliekan, 2006 UT App 405, ¶ 32, 147 P.3d 464 (quotation simplified). Accordingly, we direct the court to award Janette her fees incurred for that purpose on appeal and the fees she incurs for that purpose on remand.
CONCLUSION
¶68 We affirm the district court’s determination that Melvin’s alimony obligation continued after Janette’s remarriage. But we conclude the court abused its discretion by entering a judgment against Melvin that failed to compensate Janette for the actual loss caused by his failure to timely purchase the annuity. And we affirm the court’s award of attorney fees to Janette as the prevailing party on the Show Cause Motion. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion. On remand, the district court should enter a judgment against Melvin that adequately compensates Janette for Melvin’s failure to timely purchase the annuity. It should also award Janette her attorney fees incurred for enforcing the Decree on appeal and the fees she incurs for that purpose on remand.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] As is our practice when the parties have the same last name, we refer to them by their first names with no disrespect intended by the apparent informality.
[2] We are puzzled by this “dismissal.” What began as a pre-trial hearing appears to have resulted in the court’s dismissal of both petitions to modify. In Janette’s case, this appears to have been because she waived the basis for the Petition to Modify at the hearing on the motion to limit issues; in Melvin’s case, the dismissal ruling was made even though a motion for partial summary judgment was still pending.
[3] Again, we are puzzled. Our review of the record suggests that there was no show cause hearing before the district court.
[4] Melvin also argues the district court denied him “the right to adequate notice and a fair hearing on the issues he presented” by dismissing the Counter-petition. This issue was not preserved for appeal. To preserve an issue for appeal, a party must specifically and timely raise the issue before the district court and “introduce supporting evidence or relevant legal authority.” O’Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d 704 (quotation simplified). A review of the record reveals that Melvin did not present his due process argument to the district court, and therefore the court “did not have the opportunity to give full consideration to the issue[] at that time.” See id. ¶ 19. Further, Melvin’s principal appellate brief does not assert an exception to the preservation rule, and only in his reply brief does he argue “the [district] court committed plain error and the circumstances are exceptional.” Because Melvin has “not argued an exception to our preservation requirement to persuade us to reach” this issue, we do not consider it further. See True v. Utah Dep’t of Transp., 2018 UT App 86, ¶ 22, 427 P.3d 338; see also Marcroft v. Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (“[W]e have consistently refused to consider arguments of plain error raised for the first time in an appellant’s reply brief, even if the plain error argument is in response to a dispute over preservation raised for the first time in the appellee’s brief.” (quotation simplified)).
[5] “Spouse” is defined as “[o]ne’s husband or wife by lawful marriage.” Spouse, Black’s Law Dictionary 1533 (9th ed. 2009).
[6] “A qualified domestic relations order [(QDRO)] instructs the trustee of a retirement plan and specifies how distributions should be made, to whom, and when.” Potts v. Potts, 2018 UT App 169, ¶ 1 n.2, 436 P.3d 263 (quotation simplified).
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.
CRAIG HOSKING,
Appellee,
v.
ERIN JO CHAMBERS,
Appellant.
Opinion
No. 20160444-CA
Filed October 12, 2018
Second District Court, Ogden Department
The Honorable W. Brent West
No. 044901699
Jason B. Richards, Brandon R. Richards, and Christopher Hill, Attorneys for Appellant
Troy L. Booher, Julie J. Nelson, and Laura M. Rasmussen, Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 After their divorce in 2008, Craig Hosking was ordered to pay alimony to Erin Jo Chambers. In 2012, suspecting that Chambers might be cohabiting with a new boyfriend, Hosking asked the district court to terminate his alimony obligation. After holding a two-day evidentiary hearing, the district court determined that Chambers was indeed cohabiting, and granted Hosking’s petition. Chambers appeals, and asks us to consider two issues. First, she asserts that the district court’s cohabitation determination was unsupported. Second, she contends that the district court failed to address certain other issues pertaining to the division of property in the decree of divorce. We affirm.
BACKGROUND
¶2 Because the two issues Chambers raises are grounded in different underlying facts, we set forth the facts relevant to each issue separately, in turn.
Cohabitation
¶3 Chambers and Hosking married in 1997 and divorced in 2008. As part of the decree of divorce, the court ordered Hosking to pay Chambers alimony of $8,000 per month for three years, then $7,000 per month for four additional years. Alimony would cease after seven years, or “upon the death of either party, or upon the re-marriage or co-habitation of [Chambers].”
¶4 In 2001, after making alimony payments for more than three years, Hosking ran across an obituary that described Chambers as the spouse of the deceased’s brother. His interest piqued, Hosking hired two private investigators to determine whether Chambers was cohabiting. One of the private investigators surveilled Chambers and her boyfriend (Boyfriend) daily from August to November 2011, and again during late December 2011 and early January 2012. The other private investigator surveilled Chambers’s Ogden residence daily for seventeen days in March 2012. In May 2012, after examining the results of the surveillance, Hosking filed a petition to terminate alimony, alleging that Chambers was cohabiting with Boyfriend.
¶5 In 2015, the court held a two-day evidentiary hearing to consider Hosking’s petition. Hosking introduced testimony from the two private investigators, and also presented documentary evidence obtained during discovery from Chambers and from Boyfriend, including bank statements, credit card statements, insurance policies, and other financial records. The investigators testified that Boyfriend owned a condominium in Provo, and traveled often for work, but that he spent the majority of his non-traveling time at Chambers’s residence in Ogden rather than at his condo in Provo.
¶6 The first investigator testified that, between late August and early November 2011, Boyfriend spent twenty-four nights at Chambers’s residence and only fifteen nights in Provo. The investigator observed that Boyfriend traveled frequently for work and would return to the Ogden residence after traveling. He also observed that Boyfriend often drove three vehicles, each of which was regularly parked at the Ogden residence. Boyfriend drove one of those vehicles—later determined to belong to Chambers—not only to his job in Provo, but to the airport where he left it for several days while apparently on a trip to Hawai‘i. The investigator also testified that Boyfriend stayed at the Ogden residence continuously from December 19 to 27, and again during the first weekend of January 2012. The investigator also testified that, during the entire period of surveillance, Boyfriend regularly attended church with Chambers in Ogden. He also observed that Boyfriend’s parents took care of the Ogden residence while Chambers and Boyfriend were out of town. On a separate occasion, the investigator observed Chambers take care of a house owned by a member of Boyfriend’s family.
¶7 The second investigator surveilled the Ogden residence for seventeen days in March 2012. He testified that he observed Boyfriend stay at the Ogden residence for thirteen of those nights, and that the house was empty the remaining four nights. He also testified that Boyfriend helped with yard work and household chores, and attended church with Chambers in Ogden. He testified that he observed the same three cars observed by the first investigator parked regularly at the Ogden residence, and that Boyfriend regularly drove all three cars. Moreover, he testified that two of these cars were registered to Chambers and Boyfriend jointly. He also testified that Boyfriend appeared to have independent access to the house, stating as follows: “He could come and go from the front door. He could come and go from the garage doors. He could come and go and leave the home at will. He didn’t need help from anybody. Never knocked on a door. Never stood outside and made a phone call.”
¶8 During this time period, Chambers was attempting to sell the residence, and the second investigator posed as a potential homebuyer in order to gain access to the interior of the house. While inside the house, the investigator observed men’s clothing in the closet of the master bedroom that matched the type of clothing that he observed Boyfriend wearing during his surveillance. He also observed men’s grooming products, including shaving cream and men’s shampoo, in the master bathroom.
¶9 The financial records presented by Hosking indicated that Chambers and Boyfriend owned two vehicles together and held five joint insurance policies. In addition, the records demonstrated that Chambers and Boyfriend had a joint bank account and frequently transferred various sums of money to each other, including large amounts up to $30,000. The two had applied for a mortgage on the Ogden residence together, first in 2008, and again in 2012. On the 2008 application, Boyfriend listed his Provo address as his residence, but on the 2012 application he indicated that he had lived at the Ogden residence for a year.
¶10 Chambers and Boyfriend disputed Hosking’s characterization of their living arrangements. Both testified that Boyfriend lacked independent access to the house, did not keep any clothes in the house, and did not meaningfully contribute to household expenses. Both testified that Boyfriend kept his Provo condo as his primary residence and only occupied the Ogden home infrequently and as a guest. Both testified that Boyfriend occasionally spent the night in Ogden because Chambers was afraid of the private investigators—whom Chambers and Boyfriend had noticed loitering near the residence—and that Boyfriend would often sleep in his car in front of the house. And both characterized the various transfers of money between themselves as loans with repayment obligations.
¶11 Chamber’s mother testified at trial, acknowledging that Chambers and Boyfriend had a very close relationship, and that at the time of a pretrial deposition, she did not know whether Chambers and Boyfriend were married or not. Chambers herself testified that she and Boyfriend became engaged in 2012 and remained so, but at the time of the 2015 hearing had not yet set a wedding date. Chambers admitted to having a sexual relationship with Boyfriend and frequently traveling with him. She also acknowledged that she and Boyfriend attended church and other family events together, and that she took care of Boyfriend’s brother (the subject of the aforementioned obituary) as he suffered from terminal cancer.
¶12 Boyfriend testified that he spent a large amount of time in the Ogden area, not necessarily because of Chambers, but because most of his extended family lived in the area, his dentist and doctor were located there, and he had several business dealings in the area. He testified that he usually spent only “two or three nights a month” with Chambers, but acknowledged that his presence in Ogden increased after they became aware of the surveillance, because he was concerned about Chambers’s welfare and worried that “there were people . . . harassing her and following her.” Boyfriend also acknowledged that he was engaged to Chambers and that they had a very close relationship; indeed, he testified that he was “in love with her” and that she was his “main concern in this life.”
¶13 After the two-day hearing, the district court concluded that Chambers and Boyfriend were cohabiting, and entered an order terminating Hosking’s future alimony obligations. In addition, the court concluded that the cohabitation had begun “at least as of September 2011,” and ordered Chambers to repay Hosking all of the alimony she received during the cohabitation. In reaching these conclusions, the district court found that Hosking’s “witnesses and evidence [are] more credible than [Chambers’s] witnesses and evidence,” and that the explanations offered by Chambers and Boyfriend “are not consistent or credible.” As a result of this credibility determination, the district court concluded that it would “resolve[] all inconsistencies in the evidence and therefore all disputed issues of fact in favor of [Hosking].”
Procedural History of Allegedly Unresolved Issues
¶14 The parties’ original divorce decree, which was based on a stipulated settlement agreement, specifically addressed several items of personal marital property, including two aircraft, but stated that “[a]ll other items of personal property will be resolved separately,” that “neither party has waived any claim or interest to any other personal property not covered herein,” and that “all such claims are hereby reserved by the Court.”
¶15 Following entry of the decree, the parties conducted discovery and negotiations for over a year regarding the remaining personal property items, before the district court held a one-day trial on the issue in July 2009. At that trial, after lengthy testimony regarding various items of personal property, Chambers attempted to raise an issue regarding an insurance payment deposited into a joint bank account while she and Hosking were still married. Hosking objected, on the ground that there was already an order regarding that money; Chambers conceded that such an order existed, but claimed she was now asserting that the money was a premarital asset and that the order was in error. The court stated that it “thought [the issue] was resolved” in earlier proceedings before the domestic relations commissioner and told the parties that they would “have to sort out what happened with the commissioner” and that the court would “reserve the issue for [the parties] to figure it out.” The court took the remaining issues presented at the July 2009 trial under advisement.
¶16 On January 6, 2010, the district court issued a decision dividing the items of personal property addressed at the July 2009 trial. Soon thereafter, Hosking filed a “Request for Clarification of Court’s 1/6/10 Decision and Request for Further Findings,” asserting that the court had erred in its division of the personal property. The parties continued to litigate various issues involving the exchange of personal property through the end of 2011.
¶17 In February 2012, Chambers filed a “Notice of Issues Still Pending Before the Court,” listing ten issues that Chambers believed to be still pending. In June 2012, the district court held a hearing on those issues, at which it heard arguments from both parties on each issue and concluded that it would “not re-open the divorce.” The transcript of this hearing is not in the record on appeal. In September 2012, the court issued an order stating that eight of the ten issues Chambers raised “were merged into” the divorce decree, and “declin[ed] to re-open or proceed on those issues” in any manner. The court stated that it would retain continuing supervision over “[p]ayment of [Chambers’s] portion of retirement accounts and [Chambers] taking [Hosking’s] name off of the” Ogden residence, as already ordered in the divorce decree. And the court stated that it would retain continuing supervision, “as needed,” over the parties’ respective transfer of minor items of personal property (referred to as “[p]ots and [p]ans”), as previously ordered.
¶18 Chambers did not appeal the September 2012 order, but continued to file motions asking the court to address issues of personal property. Hosking had petitioned the court to terminate alimony by this time, and Chambers sought to address personal property issues as part of those proceedings. In March 2015, Chambers filed a document entitled “Respondent’s Submission Regarding Pending Retirement and Personal Property Issues,” which sought “final review” of certain issues that Chambers had previously raised in her February 2012 filing, including “[a]ssets that belonged to [Chambers’s] children,” Chambers’s “premarital assets,” “[f]ixtures in the family home,” and “[a]ssets included earlier in the division of assets held within the California home.” In her filing, Chambers gave no specific description of what these assets or fixtures were.
¶19 On May 12, 2015, the court held a telephonic hearing – separate from the upcoming evidentiary hearing regarding cohabitation—to discuss the scope of the personal property and retirement issues that remained to be addressed. No transcript of this hearing is in the record on appeal, but the minutes of the hearing reflect that the court stated that it would “reconsider factual errors but not legal errors,” and would not readdress issues regarding “California property” that had been “previously decided.”
¶20 At the evidentiary hearing, the court primarily hear argument and testimony on the issue of cohabitation. There was also evidence given by two accountants regarding the correct present value of one of Hosking’s retirement accounts. No argument or evidence was presented regarding any personal property, or of any factual errors the court may have made in earlier decisions regarding personal property.
ISSUES AND STANDARDS OF REVIEW
¶21 On appeal, Chambers first challenges the district court’s cohabitation determination, arguing that its factual findings do not support its ultimate determination that cohabitation was present here. In her brief, Chambers appeared to be directly challenging some of the district court’s underlying factual findings, but abandoned that position at oral argument, stating there that she was “accepting” the district court’s underlying findings, but was challenging the court’s ultimate determination that those findings add up to cohabitation.
¶22 A district court’s “pure findings of fact” are “entitled to substantial deference on appeal,” and are to be disturbed by an appellate court only if they are “clearly erroneous.” Myers v. Myers, 2011 UT 65, ¶¶ 32, 34, 266 P.3d 806. Such findings of fact “entail the empirical, such as things, events, actions, or conditions happening, existing, or taking place, as well as the subjective, such as state of mind.” Id. ¶ 32 (quotation simplified). In the cohabitation context, such “pure” findings include whether a sexual relationship exists between putative cohabitants, as well as “the degree to which they share[] space or expenses” in a household. Id. ¶ 37.
¶23 In the cohabitation arena, however, other determinations that a district court must make are findings “premised on embedded questions of law, which are reviewed for correctness.” Id. ¶ 34. For instance, a district court’s determination that two individuals do or do not have a shared residence is a “mixed question of law and fact” that involves “embedded legal conclusions that are reviewed for correctness on appeal.” Id. ¶ 35. And the ultimate determination that two individuals are cohabiting is a “question[] of law on which no deference is due.”[1]Id. ¶ 36 (stating that “the impact of common residency and of a sexual relationship on the determination of cohabitation are questions of law on which no deference is due, since they do not call for proof but rather for argument” (quotation simplified)).
¶24 Next, Chambers “seeks a reversal of the [district] court’s decision to refuse to address substantial personal property issues.” This challenge is premised on the assumption that the trial court failed to address certain issues in this case. On this issue, Chambers “seeks a remand directing the trial court” to address the issues Chambers believes remain unaddressed. “It is the duty of the [district] court to find upon all material issues raised by the pleadings, and the failure to do so is reversible error.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 25, 414 P.3d 933.
ANALYSIS
I
¶25 The “ultimate inquiry” in any cohabitation case is whether there exists “a relationship akin to that existing between” a married couple. Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806. Although the uniqueness of each individual marriage-like relationship precludes the development of a hard and fast set of elements comprising cohabitation, our supreme court has identified three general “hallmarks” of the sort of relationship that constitutes cohabitation: “a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. ¶ 24.
¶26 In this case, the district court determined that all three of these hallmarks were present in the relationship between Chambers and Boyfriend, and from this determination concluded that Chambers and Boyfriend had a relationship akin to a married couple. On appeal, Chambers challenges the district court’s determination regarding the existence of two of these hallmarks: (1) a shared residence, and (2) a common household involving shared expenses and shared decisions.[2]
A
¶27 A shared (or common) residence requires the “sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time.” Haddow v. Haddow, 707 P.2d 669, 672 (Utah 1985). Cohabitation “implies continuity,” and an individual’s status as resident— rather than guest—is critical to a determination that a common residence exists. Id. at 673 (quotation simplified). Indeed, “a resident will come and go as he pleases in his own home, while a visitor, however regular and frequent, will schedule his visits to coincide with the presence of the person he is visiting.” Id.
¶28 Here, the district court’s unchallenged factual findings support the conclusion that Chambers and Boyfriend shared a common residence. In this case, unlike in Haddow, the court found that Boyfriend spent more time at the Ogden residence than he spent at any other residence, and that Chambers’s residence was therefore his “primary residence.” The district court based that finding on abundant evidence, including the investigators’ testimony about Boyfriend’s nightly whereabouts, as well as evidence that Boyfriend came and went from the house freely, received mail at the house, returned to the house when he came back from business trips, kept clothes at the house, kept his primary vehicles at the house, and asserted in a mortgage application that he resided there.
¶29 Chambers resists the district court’s determination, arguing that the evidence relied upon by the district court failed to support the conclusion that Chambers and Boyfriend lived together for more than a temporary or brief period of time. We find this argument unpersuasive. In Scott v. Scott, 2016 UT App 31, 368 P.3d 133, rev’d on other grounds, 2017 UT 66, 423 P.3d 1275, this court noted that “temporary” refers to “the couple’s state of mind—that is, whether moving in together is motivated or accompanied by a desire to operate as a couple for the foreseeable future or is simply an expedient arrangement with no enduring quality,” while “brief” has to do with “the duration of the stay.” Id. ¶ 22 (quotation simplified). There is no doubt that Chambers and Boyfriend envisioned a non-temporary arrangement; indeed, they were engaged to be married. And while we acknowledge that a longer surveillance period would give us a more comprehensive look at the relationship, we note that a court may consider even a short surveillance period to be “representative of a longer trend in the relationship.” See Levin v. Carlton-Levin, 2014 UT App 3, ¶ 17, 318 P.3d 1177 (stating that a “fifty-two-day observation window” was long enough, because it was “representative of a longer trend in the relationship” and did not “constitut[e] the entirety of their relationship”).
¶30 We therefore see no error in the court’s determination that Chambers and Boyfriend enjoyed a common residence.
B
¶31 While both an intimate relationship and common residency are necessary conditions for cohabitation, they are not sufficient—either alone or in conjunction with each other—to establish the existence of the type of marriage-like relationship that defines cohabitation. See Myers, 2011 UT 65, ¶ 22 (finding a shared residence and sexual relationship insufficient to establish cohabitation when the relationship “bore little resemblance to a marriage” (quotation simplified)). To constitute cohabitation, the relationship must also bear the hallmarks of “a common household in the sense of shared expenses, shared decision-making, shared space, or shared meals.” Id. ¶¶ 23–24 (quotation simplified).
¶32 The district court’s unchallenged factual findings provide ample support for its determination that Chambers and Boyfriend shared a common household. The district court specifically found that Chambers and Boyfriend “made many ‘big ticket’ decisions together, including numerous major financial decisions,” and referenced their joint bank account, their joint ownership in vehicles which they jointly insured, their money transfers back and forth, and the fact that they twice jointly applied for a mortgage on the Ogden residence. The court also found that Chambers and Boyfriend “shared expenses in particular situations,” would go shopping together, and would take at least some of their joint purchases to the Ogden house. The court also referenced the fact that the couple often vacationed together, attended church together, and had “extensive involvement in each other’s extended families.” The court also noted that Chambers’s own mother, at the time of her deposition, did not know whether or not Chambers and Boyfriend were married, and that Boyfriend’s brother’s obituary listed Chambers as Boyfriend’s spouse.
¶33 On this record, we discern no error in the district court’s determination that Chambers and Boyfriend shared a common household. See Levin, 2014 UT App 3, ¶ 16 (affirming the district court’s determination regarding common household where the couple shared meals, shared responsibility in care and upkeep of the home, shared in living expenses, and made major financial decisions together).
C
¶34 Much of the evidence in this case was contested, and it is certainly conceivable that a district court could have made different credibility determinations, and accordingly made factually-supported findings on many of the issues in favor of Chambers and Boyfriend. But the district court in this case found Hosking’s witnesses much more persuasive than Chambers’ witnesses and, as a result, made a series of “pure” factual findings, all supported by competent (if contested) evidence, that comfortably support the conclusion that Chambers and Boyfriend were cohabiting.
¶35 As noted, the district court’s ultimate “determination of cohabitation” is a question of law on which no deference is due. See Myers, 2011 UT 65, ¶ 36. But that determination was informed by amply-supported findings of fact, and we cannot perceive any error in the district court’s ultimate conclusion. It is true that “there is no single prototype of marriage that all married couples conform to,” see id. ¶ 24, but the relationship enjoyed by Chambers and Boyfriend, as characterized in the district court’s unchallenged factual findings, has all of the hallmarks of a marriage-like relationship. We therefore affirm the district court’s ultimate conclusion that Chambers and Boyfriend were cohabiting, and that they began cohabiting no later than September 2011.
II
¶36 In her second argument, Chambers “seeks a reversal of the [district] court’s decision to refuse to address substantial personal property issues,” and “seeks a remand directing the [district] court” to address the issues Chambers believes remain unaddressed. This argument fails for the simple reason that the district court did not fail to address the issues Chambers raises. The district court addressed the issues, but did so in a manner that Chambers did not like, namely, by determining that it had already dealt with them.
¶37 As noted above, the district court held a series of post-decree hearings and trials on various issues of personal property, issuing rulings in 2009 and 2010. Ultimately, in 2012, after Chambers kept filing motions asking for further relief, the court determined that all of the issues raised had already been decided in previous orders, or had been merged into the original decree of divorce. In that order, the court offered to retain supervision, “as needed,” over certain personal property rulings made in its January 2010 order, but in our view this statement did not constitute an admission that certain issues remained open for adjudication; rather, this statement indicated the court’s willingness to supervise the parties, “as needed,” in their implementation of orders already made.[3]
¶38 If Chambers thought that the district court was wrong in any of its findings or conclusions as set forth in that 2012 order, Chambers had the opportunity to take an appeal from that order. But she elected not to appeal that order, and cannot do so now.[4] And to the extent that Chambers’s 2015 filing was a motion asking the court to reconsider its previous rulings, we perceive no abuse of discretion in the district court’s decision to decline such reconsideration. See Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 15, 163 P.3d 615 (stating that district courts are “under no obligation to consider motions for reconsideration,” and that a court’s “decision to address or not to address the merits of such a motion is highly discretionary” (quotation simplified)).
CONCLUSION
¶39 The district court committed no error in concluding, based on its amply-supported factual findings, that Chambers and Boyfriend were cohabiting. And Chambers’s second argument is without merit, because the district court did address the issues Chambers raises, just not in a manner Chambers liked. Accordingly, we affirm.
Utah Family Law, LC | divorceutah.com | 801-466-9277
————————————————————
[1] In other similar contexts in which a district court is asked to make a determination regarding a mixed question of law and fact, Utah appellate courts afford district courts far more discretion than Myers permits in the cohabitation context. See Myers v. Myers, 2011 UT 65, ¶ 34, 266 P.3d 806. In other contexts, a district court’s determination regarding mixed questions of law and fact is reviewed deferentially, because such determinations are “highly fact-dependent,” and have “numerous potential fact patterns, which accords the trial judge a broad measure of discretion when applying the correct legal standard to the given set of facts.” See Judd v. Bowen, 2018 UT 47, ¶ 8 (quotation simplified) (affording district courts discretion in determining whether “the legal standard for establishing a prescriptive easement” is met); see also State ex rel. B.R., 2007 UT 82, ¶ 12, 171 P.3d 435 (stating that the ultimate decision about whether to terminate a parent’s rights “presents a mixed question of law and fact,” but that due to the “factually intense nature” of the analysis, a court’s final decision regarding termination of parental rights “should be afforded a high degree of deference”); State v. Pena, 869 P.2d 932, 936–39 (Utah 1994) (stating that “the reasonable-suspicion legal standard is one that conveys a measure of discretion to the trial judge when applying that standard to a given set of facts”), abrogation on other grounds recognized by USA Power, LLC v. PacifiCorp, 2016 UT 20, ¶ 40 n.36 372 P.3d 629. While we wonder why our supreme court has prescribed a more restrictive standard of review for district court determinations in the cohabitation arena than in other similar contexts, we recognize that we are bound to follow Myers, and therefore apply the standard of review set forth there.
[2] As noted, Chambers does not challenge any of the district court’s “pure” factual findings, including its finding – based largely on her own admission – that she and Boyfriend “shared an intimate or sexual relationship.”
[3] Neither in her briefing on appeal nor in her filings before the district court did Chambers set forth exactly what the issues are that she wanted the district court to address. In her appellate brief, she devotes just over one page to the entire issue, and never makes any meaningful effort to specify what particular issues were not addressed. As noted, she included a general description (e.g., “premarital assets,” “fixtures”) of these issues in one of her filings before the district court, but made no effort to specifically identify the items. In addition, she fails to include in the record on appeal a copy of the transcript of the May 12, 2015 telephone conference at which the district court discussed these issues, and made determinations about whether and to what extent these issues had already been addressed. Under these circumstances, Chambers has not carried her burden on appeal. See Gines v. Edwards, 2017 UT App 47, ¶ 21, 397 P.3d 612 (stating that “it is the appellant’s burden to assemble, transmit, and perfect the record on appeal,” and holding that, where the appellant had failed to provide a transcript of a relevant hearing, the appellant had failed to carry its burden of demonstrating district court error). Chambers’s failure to provide a specific description of the issues she complains of, or a transcript of the relevant hearing, provides an independent basis for us to reject her second argument.
[4] In her brief on appeal, Chambers gave no hint that she was attempting to appeal the September 2012 order; in her brief, her argument was that the district court failed to address the issues, not that it had addressed them in a previous order. At oral argument, however, Chambers appeared to change tactics to assert that she was indeed seeking to challenge the September 2012 order. To the extent that Chambers is asking us to review the district court’s September 2012 order, this request suffers from two fatal infirmities. First, “[w]e do not address issues raised for the first time during oral argument.” Porenta v. Porenta, 2017 UT 78, ¶ 33, 416 P.3d 487. Second, the time to appeal the 2012 order has long since expired. That order was a final order, because it purported to finally resolve the issues presented, and she had thirty days from the entry of that order to file a notice of appeal. See Utah R. App. P. 4(a); see also America West Bank Members, L.C. v. State, 2014 UT 49, ¶ 11, 342 P.3d 224 (“Our general rule in determining whether an order is final is whether the effect of the ruling is to finally resolve the issues.” (quotation simplified)); Cahoon v. Cahoon, 641 P.2d 140, 142 (Utah 1982) (stating that orders enforcing a divorce decree “are independently subject to the test of finality, according to their own substance and effect”); Ross v. Barnett, 2018 UT App 179, ¶ 20 (“Where the effect of a postjudgment order is to determine substantial rights and end the litigation regarding a specific issue in a supplemental proceeding, the order will be a final order for purposes of appeal.” (quotation simplified)). Her time to appeal that order expired in October 2012, and we are without jurisdiction to consider an appeal from that order now. See Express Recovery Services, Inc. v. Wall, 2012 UT App 138, ¶ 2, 278 P.3d 628 (per curiam) (“If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal.” (quotation simplified)).
Jill L. Coil and Luke A. Shaw, Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.
TOOMEY, Judge:
¶1 Following a bench trial for Loren Price Anderson’s petition to modify child support and alimony, the district court awarded Lynessa Michelle Anderson $1,900 per month for alimony, $714.64 for child support, and $16,403.44 in attorney fees. Loren[1] appeals these awards, contending the district court abused its discretion by (1) imputing income to him in the amount of $6,662 per month; (2) awarding Lynessa alimony in excess of her actual needs; (3) awarding child support to Lynessa based on the improperly imputed income; and (4) awarding Lynessa attorney fees without “appropriate consideration of the relevant attorney fees factors.”
¶2 We agree with Loren that the court abused its discretion in awarding Lynessa alimony in the amount of $1,900 per month, but only to the extent that it erroneously considered retirement fund contributions in Lynessa’s monthly expenses, because they were not enjoyed during the marriage, and we remand solely for removal of that amount from the alimony award. But we conclude there was no abuse of discretion when the district court included anticipated car loan payments and health insurance in Lynessa’s monthly expenses, because alimony need not be based solely on current expenses.
¶3 We decline to address Loren’s claims of error with respect to his imputed income and the award of child support based on his imputed income because he failed to support his argument with reasoned analysis using legal precedent.
¶4 Finally, the district court did not abuse its discretion in awarding attorney fees to Lynessa based on her need and Loren’s ability to pay them.
BACKGROUND
¶5 Loren and Lynessa were married from 1989 to 2008. During their marriage, Lynessa stayed home to raise their four children while Loren worked as a contractor installing carpet and countertops. According to Lynessa, during the marriage Loren was “a workaholic,” “always looking for the next job,” and was a great provider for the family. Indeed, there was money for extras: two of their sons, Tyler and Steele, were on hockey teams that traveled for games, which could cost more than $7,000 in fees and other expenses per year, which the family was able to pay. Loren also “sometimes [paid] for other kids’ hockey tuition fees because their families couldn’t afford it themselves.” Tyler recounted that while his parents were married, “we never went without. . . . We had everything we needed.”
¶6 After working for different companies for a few years early on in the marriage, Loren started his own contracting business. He primarily submitted subcontracting bids to Action Target, a construction company that provided installations for military, law enforcement, and commercial gun ranges. The money he earned was deposited into a checking account separate from Lynessa’s checking account, and whenever Lynessa needed to pay bills or required funds for the children, Loren gave her cash. Lynessa was never privy to what Loren earned for each project and was rarely made aware of the identity of the contractor. But Tyler, Steele, and Lynessa each observed Loren carrying a great deal of cash. After a project’s completion, Loren paid cash to his workers.
¶7 In 2006, the Andersons’ marriage started to break down. Loren admitted he was “having some troubles at that time” and began using drugs. By Lynessa’s account, Loren was no longer “in his right mind set” and he became “very promiscuous” and she “didn’t want him around anymore.” Loren’s drug use rendered him incapable of earning an income for a time and it ultimately led to their divorce.
¶8 In 2008, the district court entered a default decree of divorce after Loren failed to respond to Lynessa’s petition. Because Loren did not respond and failed to assist the court with financial documents, the court relied on his 1099 Form from 2007 showing an annual income of $219,246 “or $18,271 per month” to determine his ability to pay child support and alimony. The court imputed income to Lynessa in the amount of $1,014 per month. Ultimately, Loren was ordered to pay $2,945 per month for child support and $2,719 per month for alimony. The child support obligation was to be reduced as each child reached the age of eighteen, and the alimony obligation was to continue for a period equal to the length of the marriage.
¶9 Beginning around the time of the divorce, Loren pleaded guilty to drug and fraud related crimes and was in and out of jail for three years. Though he was obligated to pay Lynessa a total of $5,664 each month for alimony and child support, he rarely paid and never in the full amount. When he did pay, it was always in cash, until the Office of Recovery Services (ORS) became involved. Lynessa testified, “We would go long periods of time without anything from [Loren]. For the longest time he was paying 200 a month, and he just recently changed it to paying [550].” Even after ORS became involved, Lynessa received only $600 per month for combined child support and alimony. This required Lynessa to receive financial assistance from her church, friends, and family. She also sold some of her gold, jewelry, and other items to provide for herself and the children. But even with this help, she was always behind on bills, and neither she nor the children lived a lifestyle similar to what they enjoyed during the marriage. Tyler testified that their living conditions changed after the divorce, that Lynessa could not fix things around the house, that they relied on their church for food, and that without the money for alimony or child support, Lynessa worked as often as she could “even if it meant not seeing [the children] as often.”
¶10 In 2011, Loren filed a petition to modify child support and alimony (the Petition) based on a substantial change in circumstances that resulted in a decrease in income from the time the divorce decree was entered. He alleged that he could not afford to pay child support or alimony because the amount he was ordered to pay was “in excess of [his] income.” Loren claimed he had no income during his incarceration and a decreased ability to earn an income similar to what he had earned during the marriage because he could no longer maintain his own construction business.
¶11 Lynessa and Loren each filed financial declarations and other documents related to their respective incomes and expenses. Lynessa provided her 2014 tax return and pay stubs from 2015, which supported her net monthly income of $2,572.01 as purported in her financial declaration, and claimed monthly expenses in the amount of $5,496.21. Loren provided incomplete tax returns for the years he had actually filed them and monthly pay stubs from one employer with hourly rates that varied from about $20 per hour to $33 per hour. But Loren claimed he was earning only $11 per hour, or $2000 per month.
¶12 The district court held a bench trial in 2015 to resolve the issues Loren raised in the Petition. At trial, most of the testimony related to Loren’s ability to earn income, whether he was actually earning only $2,000 per month, and whether he or his new wife (New Wife) owned a construction company.
¶13 Around the time Loren filed the Petition, he had initiated a romantic relationship with New Wife and helped her to register a construction company, Steelcoat. New Wife had never owned a business before, let alone a construction company, and both New Wife and Loren admitted that she relied on Loren to operate Steelcoat. Loren claimed he was only an employee of Steelcoat and made just $11 per hour, or $2,000 per month, but also admitted at trial that he was the “face [of Steelcoat] to a lot of people at Action Target”—the construction company that subcontracts most of Steelcoat’s work and with which Loren has had a long professional relationship.
¶14 Loren’s claimed income and whether New Wife was indeed the sole proprietor of Steelcoat were called into question when New Wife admitted that Loren helped create all of the bids Steelcoat sent to different companies and that she was not sure whether the bids needed to be signed before submission. In addition, a representative from Action Target testified that submitting bids is “pretty specific” and “detailed” work that requires a bidder to have “at least done some [installation] work before, or be guided in what it takes to do it.” The representative also testified that Action Target works closely with its subcontractors during projects and that when it accepts Steelcoat’s bids the company communicates with Loren and not with New Wife. Further, Loren admitted that Action Target has hired him, personally, to complete certain of its projects, but he did not provide any information related to the payments he received for those projects.
¶15 In addition to Loren’s failure to provide the court with a complete tax return, other than a 2004 tax return, to support his claimed monthly income of $2,000 per month, Lynessa’s attorney elicited testimony from Steele that further negated Loren’s claim about his income. Steele testified that when he asked Loren for financial help for hockey fees just before the trial, Loren responded that if Lynessa “would stop coming after him [for] money” that “it would be easier for him to not have to hide what he’s doing.” And when the court asked about his ability to earn a better income, Loren admitted he had not applied for employment that would pay more than $11 per hour “in the last three or four years” prior to the trial.
¶16 After trial, the district court entered findings of fact and conclusions of law. It found that there had been a “material and substantial change in circumstance” with respect to the incomes of both parties that allowed for modification of the divorce decree. Because Loren failed to provide complete financial documents or tax returns, the court had to determine an appropriate amount of income to impute to him. It found incredible the testimony regarding Loren’s income and New Wife’s sole ownership of Steelcoat. Loren admitted that Action Target employed him personally for specific projects, yet provided the court with no documentation to show what he was paid or invoice records “from his prior relationship with Action Target” to give the court a general idea of the income Loren was making and could continue to make. The court also found that Steele’s testimony that Loren was “hid[ing] things” from Lynessa was a “refer[ence] to unreported income.” The court therefore relied on Loren’s 2004 tax return, which represented a period when Loren owned and operated a company similar to Steelcoat, to impute income to him. In 2004, Loren’s adjusted gross income was $41,317. The court added $20,000 to this amount based on what Loren paid for his sons’ hockey expenses and his ability to pay for other team members’ fees. The court also considered inflation rates and ultimately imputed income to him in the amount of $79,948 annually, or $6,662 monthly.
¶17 When determining the amount of alimony to award Lynessa, the court addressed her claimed monthly expenses. These amounted to $5,496.21, but the court removed “the amount spent on adult children, school fees which can be waived[,] and pet care” and found that her reasonable monthly expenses were $4,400. Based on these expenses and her monthly income of $2,513, the court awarded $1,900 per month for alimony. This amount was to be applied retroactively, subsuming the original $2,954 monthly award, starting from the time the divorce decree was entered and lasting for a period equal to the length of the marriage. The court also reduced the award of child support to $714.64 per month for the parties’ remaining minor child.
¶18 Loren timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶19 Loren raises four issues on appeal. First, he contends the district court abused its discretion in imputing his monthly income at $6,662. In a divorce action, the district court “‘is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.’” Rayner v. Rayner, 2013 UT App 269, ¶¶ 4, 26, 316 P.3d 455 (quoting Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079). We will reverse only if “(1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the evidence clearly preponderated against the finding; . . . (3) such a serious inequity has resulted as to manifest a clear abuse of discretion”; or (4) the district court “abuse[d] its discretion by failing to enter specific, detailed findings supporting its financial determinations.” Id. (citations and internal quotation marks omitted).
¶20 Second, Loren contends the district court erred in awarding Lynessa alimony in the amount of $1,900 per month, “even if [Loren’s] income should be imputed at $6,662,” because the award was “hundreds of dollars in excess of [Lynessa’s] stated monthly needs” because it included anticipated expenses and was combined with the award of child support.
¶21 Third, Loren contends the district court erred in “setting [his] child support obligation in an amount based upon his imputed income of $6,662” per month. We review the district court’s “decisions regarding child support and alimony under the abuse of discretion standard.” Andrus v. Andrus, 2007 UT App 291, ¶ 9, 169 P.3d 754.
¶22 Finally, Loren contends the district court erred in awarding Lynessa attorney fees because it failed to consider the “relevant attorney fees factors.” Although the decision regarding attorney fees in divorce proceedings “rests primarily in the sound discretion of the [district] court,” we will reverse the award if the court fails to provide adequate findings of fact regarding the following factors: (1) the receiving spouse’s financial need, (2) the paying spouse’s ability to pay, and (3) the reasonableness of the requested amount of fees. See Oliekan v.
Oliekan, 2006 UT App 405, ¶ 30, 147 P.3d 464.
ANALYSIS
Imputed Income
¶23 Loren first contends the district court erred in imputing $6,662 in monthly income to him because the court used his 2004 tax return to determine the amount he was capable of making, rather than using the pay stubs or more recent tax returns, and added $20,000 to that amount based on expenses incurred during the marriage that were discussed at trial. But Loren has provided no reasoned analysis to support this contention and we therefore affirm with respect to this issue.
¶24 Rule 24 of the Utah Rules of Appellate Procedure identifies the briefing requirements on appeal. An appellant’s brief must assert contentions of error that occurred in the proceedings below and develop a reasoned argument for why the purported errors should be reversed. See Utah R. App. P. 24(a)(8). The appellant’s argument must be supported with citations to the record and legal authority that governs the issues presented. See id. An argument is inadequately briefed, and in violation of rule 24, when it “merely contains bald citations to authority [without] development of that authority and reasoned analysis based on that authority.” Bank of America v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196 (alteration in original) (citation and internal quotation marks omitted).
¶25 The Utah Supreme Court has recently clarified that the failure to comply with rule 24 is no longer “an absolute bar to review of an argument on appeal.” See Rose v. Office of Prof’l Conduct, 2017 UT 50, ¶ 64, petition for cert. filed, Dec. 4, 2017 (No. 17-7003). But failure to adequately brief an argument will almost certainly result in the failure to “‘carry [the] burden of persuasion on appeal.’” See id. (quoting Adamson, 2017 UT 2, ¶ 12).
¶26 Loren has marshaled the record facts he is challenging with respect to his imputed income—sixteen pages were devoted to this issue, alone. See Utah R. App. P. 24(a)(6)(A); see also id. R. 24(a)(8). Loren also provided citations to a few cases and a statute. But he has failed to apply the legal authority he cited to any of the facts.
¶27 Because Loren failed to develop a reasoned argument with the use of legal authority to support his contention that the district court improperly imputed income to him, he has failed to meet his burden of persuasion on appeal with respect to this issue. See Adamson, 2017 UT 2, ¶ 12. We therefore affirm the district court’s decision to impute to Loren a monthly income of $6,662. As a result, we likewise do not address his contention on appeal that the district court erred in “setting [his] child support obligation in an amount based upon his imputed income of $6,662” per month.
Alimony
¶28 Loren contends that “even if the court’s imputation of income” to him was correct, the alimony award of $1,900 per month was in excess of Lynessa’s needs. Loren makes two overarching arguments related to this contention. First, he takes issue with items listed in Lynessa’s financial declaration that “were not actual expenses,” “were not supported by any evidence,” and “did not exist” at the time of the marriage. Second, he argues the award was hundreds of dollars in excess of Lynessa’s needs because she was also awarded $714.64 in child support.
¶29 In divorce proceedings, the district court’s determinations related to financial interests of the parties “are entitled to a presumption of validity” and we will not reverse absent a clear abuse of discretion. See Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (citation and internal quotation marks omitted). “The purposes of an alimony award include 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.” Rudman v. Rudman, 812 P.2d 73, 76 (Utah Ct. App. 1991). The court must consider three factors when determining alimony: “(1) the financial condition and needs of the receiving spouse, (2) the ability of the receiving spouse to produce sufficient income for him- or herself, and (3) the ability of the responding spouse to provide support.” Id.
Lynessa’s Monthly Expenses
¶30 Loren challenges the following three expenses identified in Lynessa’s financial declaration: (1) a retirement account contribution, (2) a car loan, and (3) health insurance. He argues that these were not “actual expenses” or needs because Lynessa testified they were anticipated expenses rather than what she was presently paying.
¶31 An award of alimony is intended to help the parties “maintain the standard of living established over the course of the marriage rather than the amount that is actually being spent.” Woolums v. Woolums, 2013 UT App 232, ¶ 9, 312 P.3d 939. We have previously defined “standard of living” as “a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991) (citation and internal quotation marks omitted). This court has therefore “disavowed the notion that ‘standard of living is determined by actual expenses alone.’” Woolums, 2013 UT App 232, ¶ 9 (quoting Howell, 806 P.2d at 1212). Actual expenses “may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including, possibly, lack of income.” Howell, 806 P.2d at 1212. It necessarily follows that if the court determines the receiving spouse’s actual and anticipated needs are reasonable, that they are consistent with the standard of living enjoyed during the marriage, and that the paying spouse can afford to cover the shortfall of those needs, then the alimony award should be in an amount to accommodate that shortfall.
¶32 Here, the anticipated expenses of the car loan and health insurance were reasonable anticipated expenses for basic needs that were established as standard during the marriage. Loren, Lynessa, and Tyler each testified at trial that Lynessa had a car during the marriage, but that it broke down and she was without a car for two years leading up to the trial. Lynessa testified that she would have purchased a car to replace the old one if she had been receiving the alimony she was entitled to. Therefore, it was reasonable for the court to include the car loan in Lynessa’s monthly expenses.
¶33 The district court likewise did not abuse its discretion by including health insurance costs in Lynessa’s monthly expenses. Lynessa testified that she suffered from medical conditions both during and after the marriage for which she took medication and was under medical care. There was no suggestion at trial that her medical needs were not provided for during the marriage, and the original divorce decree indicated that Loren was providing some medical insurance at the time the marriage dissolved.[2] And although Lynessa was not asked at trial whether the parties had health insurance during the marriage, Loren was aware, prior to trial, that Lynessa identified health insurance as an expense in her financial declaration. He therefore left the issue for the district court to determine, using its broad discretion based on the evidence before it. See Woolums, 2013 UT App 232, ¶ 10 (holding “[t]he district court’s evaluation of and reliance on Wife’s testimony, along with its own determinations of the reasonableness of the claimed expenses, fell squarely within its broad discretion to determine an appropriate alimony award”). Given the medical conditions Lynessa testified she suffered from both during and after the marriage, and that health insurance was at least provided for the children during the marriage, as well as Loren’s failure to contest whether health insurance for Lynessa was established during the marriage, we conclude there was no abuse of discretion in considering anticipated health insurance costs in her monthly expenses.
¶34 As to Loren’s challenge regarding the retirement account, we agree that the district court exceeded the scope of its discretion when it included among Lynessa’s necessary monthly expenses $200 per month for retirement account contributions.
¶35 Utah Code section 30-3-5 allows the district court to address the needs of a spouse that did not exist during the marriage or at the time the divorce decree was entered only if “the court finds extenuating circumstances that justify that action.” Utah Code Ann. § 30-3-5(h)(ii) (LexisNexis Supp. 2017). This court has previously explained that retirement accounts “may not ordinarily be factored into an alimony determination,” unless “funds for post-divorce . . . retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standard of living.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16, 80 P.3d 153. If this circumstance exists and the district court determines that the retirement account “should be taken into account as part of the needs analysis, then the court’s findings must be even more detailed than those in a standard needs analysis,” because this award “is the exception, rather than the rule.” Id.; see also Rudman v. Rudman, 812 P.2d 73, 76 n.1 (Utah Ct. App. 1991) (explaining that in cases “where the evidence is severely conflicted, it is essential that the reviewing court clearly understand the findings on which the [district] court bases its conclusions”).
¶36 Here, the district court made no findings related to Lynessa’s claim for $200 of monthly retirement contribution. At best, the order noted, “[Lynessa] included expenses that were reasonable, such as a car, insurance and health insurance, even though she does not presently have them but would have them if [Loren] paid support.” Though this statement could be read as a non-exhaustive list of reasonable expenses not yet incurred, failure to provide any factual findings related to the claimed retirement account expense is a violation of our explicit requirement that the court’s findings related to such accounts “must be even more detailed than those in a standard needs analysis.” See Bakanowski, 2003 UT App 357, ¶ 16. In addition, our review of the record shows that the initial divorce decree specifically stated, “Retirement and Savings. Neither party has a pension nor a profit sharing plan through his or her place of employment or otherwise.” The district court relied on this divorce decree for certain of its findings of facts and it was therefore an abuse of discretion to consider the anticipated retirement fund contribution in Lynessa’s monthly expenses.
¶37 We remand to the district court for the limited purpose of removing the $200 retirement fund contribution from Lynessa’s necessary monthly expenses and to adjust the award of alimony accordingly.
Awarding Alimony and Child Support
¶38 Loren contends the district court abused its discretion in awarding Lynessa $1,900 for alimony because she was also receiving approximately $715 per month in child support, and these combined awards exceed her stated monthly expenses. We disagree.
¶39 Child support is a “basic and unalienable right . . . vested in the minor.” SeeReick v. Reick, 652 P.2d 916, 917 (Utah 1982) (per curiam). This court has previously explained that “[i]t is typically best practice for [district] courts to analyze alimony without factoring in child support obligations.” Dobson v. Dobson, 2012 UT App 373, ¶ 11, 294 P.3d 591. But we have held that “treating child support payments as the recipient spouse’s income is permissible where the recipient combine[s] her expenses with those of the children in her financial declaration.” Roberts v. Roberts, 2014 UT App 211, ¶ 17, 335 P.3d 378 (alteration in original) (citation and internal quotation marks omitted). “[W]hen at least some of the children’s expenses seem to have been factored into the alimony calculation already” then the district court must explain its decision not to include child support payments as income. See id.
¶40 Here, the district court specifically removed “the amount spent on adult children [and] school fees which can be waived” from Lynessa’s monthly expenses. Loren has not directed us to anything within Lynessa’s financial declaration that could be considered additional expenses spent solely on the minor child still residing with Lynessa. Without providing a reasoned analysis with respect to awarding child support in addition to alimony, Loren has failed to carry his burden of persuasion on appeal with respect to this issue. See Bank of America v. Adamson, 2017 UT 2, ¶¶ 12–13, 391 P.3d 196 (providing that a party who “fails to devote adequate attention to an issue is almost certainly going to fail to meet its burden of persuasion” on appeal).
¶41 The court also explained that “although her current living style does not match what she enjoyed during the marriage, there are insufficient funds after the divorce . . . between the parties to allow her to live that lifestyle.” The court appears to imply that the award of alimony could have been higher if Loren’s income was similar to what he earned during the marriage.
¶42 The district court did not abuse its discretion when it awarded alimony to Lynessa in addition to child support.
III. Attorney Fees
¶43 Loren contends the district court erred in awarding attorney fees to Lynessa without “an appropriate consideration of the relevant attorney fees factors.” We disagree.
¶44 In the context of divorce, “[t]he decision to award attorney fees and the amount thereof rests primarily in the sound discretion of the [district] court,” but the court must “base the award on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998); see also Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (providing that in an action to modify child support or alimony, “the court may order a party to pay the costs, attorney fees, and witness fees . . . of the other party to enable the other party to prosecute or defend the action”).
¶45 Here, the district court considered the required attorney fees factors when awarding fees to Lynessa. The court found that because Loren “has been able to get support and income modified from the [divorce] decree,” and “since [he] has not been paying adequate alimony or child support, [Lynessa] cannot afford attorney fees but [Loren] has the ability to pay them.”[3] Loren’s ability to pay was also based on the income imputed to him.
¶46 The district court did not abuse its discretion in awarding attorney fees to Lynessa.[4]
¶47 On appeal, Lynessa has requested that she be awarded attorney fees incurred in her defense of this appeal. “Generally, when the [district] court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (citation and internal quotation marks omitted); see alsoOliekan v. Oliekan, 2006 UT App 405, ¶ 32, 147 P.3d 464 (“[W]e will generally award attorney fees on appeal to the prevailing party if the [district] court awarded attorney fees and the receiving party prevails on the main issues on appeal.”). Because the district court properly awarded attorney fees to Lynessa in the action below and because she has substantially prevailed on appeal, we accordingly award her attorney fees on appeal and remand to the district court to calculate the reasonable amount of fees and costs she incurred in connection with this appeal. See Osguthorpe, 872 P.2d at 1059.
CONCLUSION
¶48 We conclude the district court did not abuse its discretion when it included anticipated costs for health insurance and car loan payments in Lynessa’s necessary monthly expenses because they were reasonable expenses within the marriage standard of living and that she would have continued to incur if Loren had consistently paid her alimony and child support. The court also did not abuse its discretion in awarding child support in addition to alimony because child support is a vested right of the child and the court removed costs from Lynessa’s monthly expenses that related specifically to the children. The district court also did not abuse its discretion in awarding attorney fees to Lynessa under Utah Code section 30-3-3 because it gave appropriate consideration to the relevant attorney fees factors.
¶49 We further conclude the district court abused its discretion when it included retirement account contributions in Lynessa’s necessary monthly expenses because contribution to such an account did not exist during the marriage.
¶50 Accordingly, we remand to the district court for the removal of retirement account contribution expenses from the alimony calculation and to calculate reasonable attorney fees incurred by Lynessa on appeal
[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] . Our review of the record shows that the original divorce decree ordered Loren to continue to pay for the children’s health insurance.
[3] . The court also commented that Loren’s “hiding of income and failure to be forthcoming with complete records makes it inequitable to award him attorney[] fees” and that those same factors would allow an award of attorney fees to Lynessa “under the bad faith provision” of Utah Code section 78B-5-825. We agree with Loren that this was an incorrect application of section 78B-5-825, which allows a court to award attorney fees to the prevailing party “if the court determines that the action or defense to the action was without merit or not brought or asserted in good faith.” Utah Code Ann. § 78B-5-825(1) (LexisNexis 2012). First, it is unclear who the prevailing party is in this situation. Although Loren was unable to persuade the court that he was making only $11 per hour, he successfully petitioned it to reduce his obligations of alimony and child support. Second, because of this success, we cannot agree that the action was without merit or brought in bad faith. Though we do not condone Loren’s failure to provide adequate financial documents to support his alleged income, we do not agree with the court that Lynessa deserves attorney fees under the bad faith provision of the attorney fees statute. But this analysis has no effect on the district court’s award of attorney fees under Utah Code section 30-3-3.
[4] . The court awarded attorney fees in the amount of $16,403.44 “as stated in Petitioner’s Affidavit of Attorney’s Fees.” This affidavit provided the various billing rates of attorneys from two law firms, and provided the total number of hours each firm spent on Lynessa’s case; the affidavit did not identify which attorneys spent what amount of time on the case in calculating the final amount. But Loren has not argued this was error and therefore we will not address whether it was an abuse of discretion for the district court to rely solely on this affidavit when determining the amount of attorney fees.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This opinion is subject to revision before final publication in the Pacific Reporter
2017 UT 66
IN THE SUPREME COURT OF THE STATE OF UTAH
JILLIAN SCOTT, Petitioner,
v.
BRADLEY SCOTT, Respondent.
No. 20160299
Filed September 21, 2017
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Judge Robert P. Faust
No. 124903563
Attorneys:
Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher, Julie J. Nelson, Salt Lake City, for petitioner
Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, for respondent
JUSTICE PEARCE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM and JUDGE BROWN joined.
Having been recused, JUSTICE HIMONAS does not participate herein; DISTRICT COURT JUDGE JENNIFER A. BROWN sat.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 Jillian Scott petitions this court to overturn the Utah Court of Appeals’ order affirming the district court’s conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under Utah Code section 30-3-5(10). This requires us to revisit a question that captured the nation’s attention in 1999 because the meaning of section 30-3-5(10) “depends upon what the meaning of the word ‘is’ is.” We conclude that the legislature intended that is should mean is and not was or has been.
We reverse.
BACKGROUND
¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, “Alimony shall terminate upon the remarriage or cohabitation of [Wife].”
¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex-boyfriend. Husband argued that Wife had begun “cohabit[ing] with an adult male . . . on or about February 2011,” that Wife had a relationship with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time.” Wife and J.O. had broken up months before Husband filed his motion. The statutory language[1] governing termination of alimony provides that alimony “terminates upon establishment by the party paying alimony that the former
spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10).[2]
[1] The court of appeals’ opinion correctly noted:
The parties’ decree of divorce differs from the language contained in Utah Code section 30-3-5(10). . . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ decree is substantively identical to the statute on the issue of cohabitation.
Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379 P.3d 1183 (Utah 2016). On certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree’s language.
[2] The Utah statute employs the verb cohabitate. See UTAH CODE § 30-3-5(10). We, however, use the more common term cohabit throughout this opinion when not quoting the statute. See Cohabit, GARNER’S MODERN AMERICAN USAGE (4th ed. 2016) (“Cohabitate is a misbegotten BACK-FORMATION that has never seriously competed with cohabit in print sources. . . . Current ratio (cohabiting vs. cohabitating): 8:1.”).
¶4 The district court found that Wife and J.O. had cohabited and that their cohabitation terminated Husband’s obligation to pay Wife alimony. The court stated that “[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple, who without those resources, cohabitate in a single home.” The court found it significant that Wife and J.O. had been “together or staying in one of [J.O]’s homes approximately 87% of the time from December 2010 onward.” Thus, considering the details of the couple’s intimate and exclusive 30–31-month relationship ending sometime before April 2011, the district court found that the evidence before it established “cohabitation and a relationship akin to a husband and wife.” The court ordered Wife to return to Husband “any alimony paid to her from December 22, 2010 to the present.”[3]
[3] We omit the details of Wife and J.O.’s time spent together at their various homes and vacation destinations, recounted at length in the court of appeals’ opinion, Scott, 2016 UT App 31.
¶5 Wife appealed and argued to the Utah Court of Appeals that the district court’s interpretation of the statute failed to account for the present tense of the to be verb “is” in the statute. See UTAH CODE § 30-3-5(10) (alimony should dissolve upon establishment that “the former spouse is cohabitating”). Under Wife’s reading, Husband could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that in order to terminate Husband’s obligation under the plain language of the statute, Husband had to show that she was cohabiting at the time he filed his motion to terminate alimony.
¶6 Husband contended to the court of appeals that Wife’s statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, “that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory interpretation argument “regardless of whether it was properly preserved.” Id.
¶7 The court of appeals disagreed with Wife’s plain language argument. The court explained that “[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute.” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “when the present-tense [to be] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive.” Id. ¶ 32 (internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “terminates upon establishment” of cohabitation. Id. (emphasis added); UTAH CODE § 30-3-5(10). The court of appeals determined that, because the statute lacks a provision allowing for “alimony reinstatement once cohabitation ends” or a provision explaining “that alimony is only suspended during cohabitation,” “the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it with such a burden.” Scott, 2016 UT App 31, ¶ 32.
¶8 The court of appeals also reasoned that the legislature “could not have intended” the result Wife’s briefing described. Id. ¶ 33 (citation omitted). The court acknowledged “that requiring termination of alimony in [Wife’s] circumstances does not entirely align with the general economic policies underlying alimony.” Id. ¶ 35. “[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not.” Id. But the court explained that
interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature’s intent.
Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “a common abode” that was also their “principal domicile” for “more than a temporary or brief period of time,” the court rejected Wife’s argument and upheld the district court’s conclusion that Wife and J.O. had cohabited. Id. ¶¶ 16–26.
¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court’s timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, “because their vacations together before they moved to [California] still retained a temporary quality.” Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife’s payment to Husband to reflect the dates it found significant. Id. ¶ 38.
¶10 We disagree with the court of appeals’ reading of the cohabitation statute. We instead conclude that the plain language of Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.[4]
[4] Because we conclude that Husband did not establish that Wife cohabited within the meaning of the statute, we do not reach the merits of Wife’s other contentions arguing that the court of appeals erred in its application of the law.
We also clarify an appellee’s burden of persuasion on certiorari when the court of appeals addresses an issue that the appellee claims was unpreserved.
¶11 We have jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶12 On certioriari, we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. “We also review questions of statutory interpretation . . . for correctness.” Id.
ANALYSIS
I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited
¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband’s argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, “[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved.” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.
¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that
consideration of the [statute] is necessary to a proper decision. As the state’s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant’s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.
Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation question.
¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceedings by requiring a party to advise a trial court of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hopes of enhancing her chances of prevailing on appeal. Thus, we require a party to present an issue “in such a way that the [district] court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in original) (citation omitted). We “exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal.” Id. ¶ 13. And we have used that discretion to carve out a few exceptions to the preservation requirement. For example, “we have reached matters not raised below under ‘exceptional circumstances’ or when ‘plain error’ has occurred.” Id. Stated differently, absent some exception, we do not normally address unpreserved issues.
¶16 This case does not present the normal situation. We are not asked to address an issue that a party is raising for the first time on appeal. Rather, we are asked to address an issue that the court of appeals determined it needed to resolve, even if it were unpreserved.
¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in the trial court. See Record, passim. Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of appeals should not have touched the unpreserved issue in the first place.
¶18 We have the ability to affirm a decision on any ground apparent on the record. “[I]t is well established that an appellate court may affirm” a judgment “if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002 UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a court of appeals ruling where that court erroneously addressed an unpreserved issue.
¶19 That is not to say, however, that an appellee may simply flag the preservation problem and expect that we will exercise our discretion to ignore the court of appeals’ decision and affirm for a lack of preservation. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in the matter, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals erred in tackling the unpreserved issue and that the error is “apparent on the record.” This is especially important in a case like this where the court of appeals explained its rationale for reaching the arguably unpreserved issue. In this circumstance, the party may want to argue that the unpreserved issue did not implicate plain error, did not present any exceptional circumstance, or that it was not necessary for the court of appeals to address the issue to reach a proper conclusion. Husband did none of these.
¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the Cohabitation Provision should be interpreted. The court of appeals believed that even if the statutory argument was not preserved, it needed to construe the statute to properly resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in Patterson. But in the absence of parties willing to develop those arguments, we are reluctant to wade in on our own. Simply stated, the decision to affirm on other grounds lies in this Court’s discretion and Husband has provided us little reason to exercise that discretion on the record before us.
¶21 As we previously stated, the resolution of this case turns on what the definition of is is. Utah Code section 30-3-5(10) provides that
alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.
(Emphasis added). Wife argues—both to us now and previously to the court of appeals—that the statute’s use of “is” requires that cohabitation be ongoing to terminate alimony under the plain language of the rule.[5]
[5] We note that the language of the divorce decree may point to a different result. See supra ¶ 3 n.1. That language provides that “[a]limony shall terminate upon the remarriage or cohabitation of [Wife].” We again note that, while the court of appeals drew this to the parties’ attention, see Scott, 2016 UT App 31, ¶ 9 n.2, neither party argues on certiorari that we should decide this case under the language of the divorce decree or that the decree’s language demands a different result.
She contends that the court of appeals erred when it interpreted is to mean was. The court of appeals understood Utah Code section 30-3-5(10) to permit a showing that the spouse collecting alimony was or had been cohabiting at some previous date, regardless of whether the spouse was actually cohabiting at the time of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain language analysis that considered the cohabitation provision both “as a whole” and “in harmony with” the other provisions of the statute, id. ¶ 28 (citation omitted), the court of appeals determined that Wife’s “present cohabitation” reading was erroneous regardless of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First, the court believed the statute’s later use of the verb terminates “precludes an interpretation that alimony might then be reinstated should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s interpretation “could lead to results that the legislature ‘could not have intended.’” Id. ¶ 33 (citation omitted). And, finally, it complained that Wife “offered no guidance on how to feasibly implement” a present-tense reading. Id. ¶ 34. Wife contends that the most reasonable interpretation of the statute is hers: that the plain language of the statute “requires that cohabitation be ongoing to terminate alimony.”
¶22 When we interpret statutes, “our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).
Since “‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” In so doing, “[w]e presume that the legislature used each word advisedly.” . . . 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.
Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals’ opinion no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.
¶23 We believe the court of appeals erred in reading less into the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense—‘has cohabited’—which would have ‘denote[d] an act, state, or condition that is now completed or continues up to the present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original) (citation omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option.”). And the court of appeals admitted that
the strongest statutory support for Wife’s interpretation of the [statute] is the use of the presenttense “is.”
Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for Wife’s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon establishment “that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting” is a verb phrase comprised of two verbs: the present tense auxiliary “is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORDDICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present participle of any verb—like cohabiting—paired with is creates a “continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). In light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing cohabitation meets the statute’s terms head-on.
¶24 A statutory reading that credits a verb’s tense is not uncommon. Our own court of appeals relied on similar reasoning in Prows v. Labor Commission: “Typically, we understand ‘is’ as a present-tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise. See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a statute according to the “present perfect tense”). And Utah is in good company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.’” (omission in original) (quoting 1 U.S.C. § 1); United States v. Williams, 462 F. Supp. 2d 342, 344 (E.D.N.Y. 2006) (“In short, ‘is’ means ‘is,’ not ‘is or was’ or ‘is, depending on the chronology of events.’”), aff’d sub nom. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); see also AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations omitted) (“This is not the first time a judicial body has been presented with the surprisingly difficult task of discerning the meaning of a monosyllabic word of repeated, everyday usage.”). Not for nothing, the Supreme Court of the United States has likewise indicated that, “[c]onsistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”).
¶25 The court of appeals reached a contrary conclusion reasoning that the Cohabitation Provision immediately follows the Remarriage Provision and that “[i]t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financial support.’” Scott, 2016 UT App 31, ¶ 29 (citation omitted). Viewing the statute through the prism of the statute’s purported purpose, the court of appeals concluded that its reading would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.
¶26 The court of appeals noted that the only significant difference between Utah Code section 30-3-5(9), the Death or Remarriage Provision, and section 30-3-5(10), the Cohabitation
Provision, is “the means by which termination [of alimony] occurs.” Id. ¶ 29. The language of the Death or Remarriage Provision provides that alimony terminates automatically “upon the remarriage or death” of the former spouse; however, the Cohabitation Provision provides that alimony terminates “upon establishment . . . that the former spouse is cohabitating.” UTAH CODE § 30-3-5(9), (10) (emphases added).[6]
[6] Husband cites Black v. Black for the proposition that cohabitation need not be ongoing: “the order imposing alimony terminate[s] automatically upon the establishment of cohabitation.” 2008 UT App 465, ¶ 8, 199 P.3d 371. This passage is court of appeals dicta and does not bind us. Moreover, in light of our decision today, it misstates the law.
But because the court of appeals posited that the legislature must have wanted both provisions to operate in a similar fashion, it looked to harmonize the statutes in a fashion that would permit the “alimony consequences” to “take effect as of the date cohabitation began,” and consequently minimized the differences in the statutory language. Scott, 2016 UT App 31, ¶ 31. But if we start from the premise that we should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish, the difference in the language assumes greater importance. See, e.g., Penunuri, 2013 UT 22, ¶ 15 (“Because ‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” (alteration in original) (citation omitted)); Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d 751 (“To discern legislative intent, we first look to the plain language of the statute.”); K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994) (“When faced with a question of statutory construction, we look first to the plain language of the statute.”). Starting with the plain language, we can infer that the legislature intended that alimony cease upon remarriage or death, but that, in the case of cohabitation, it would terminate upon establishment of present cohabitation— even if that meant that the provisions would operate differently.[7]
[7] The court of appeals also resisted this conclusion because it might allow for “alimony reinstatement once cohabitation ends.” Scott, 2016 UT App 31, ¶ 32. The court of appeals opined that if the legislature wanted this result, it could have said so explicitly, perhaps by including a provision that stated “that alimony is only suspended during cohabitation.” Id. We see two issues with this conclusion. First, as written, the statute does not suspend alimony during cohabitation. The statute’s plain language does not require the resumption of alimony payments after the paying spouse establishes cohabitation, even if the cohabiting later ends. The seemingly anomalous result the court of appeals assails will occur only when the cohabitation begins and ends before the paying spouse can file a termination petition. Second, although we wholeheartedly agree with the court of appeals that the legislature could have been clearer, we are not justified from departing from the plain language of the statute just because we can envision a manner in which the legislature could have expressed its intent more clearly.
¶27 We understand the court of appeals’ instinct to push against the result the plain language yields, and we understand the temptation to read the statute in a fashion that treats cohabitation identically to remarriage. It may seem incongruous that a marriage lasting forty-eight hours will terminate alimony but that a cohabiting relationship lasting years may not if that relationship ends before the paying spouse files to terminate alimony. But we do not believe, as the court of appeals did, that this is a result that the legislature “could not have intended.” Scott, 2016 UT App 31, ¶ 33 (quoting Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (invoking “absurdity” doctrine)).
¶28 Both Husband and the court of appeals invoke the absurdity doctrine without calling it by name. The absurdity doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley, 2016 UT 48, ¶ 27.
[T]his court will not apply the absurdity doctrine unless “the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” This standard is satisfied only if the legislature could not reasonably have intended the result.
Id. ¶ 28 (second alteration in original) (omission in original) (citations omitted). We concede that the legislature could have intended a different result—in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome—but we do not believe that the result the plain language dictates is absurd, let alone “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” Id. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result.[8]
[8] Of course, parties unhappy with this statutory default may choose instead to agree to a divorce decree that terminates alimony upon cohabitation.
¶29 The court of appeals also sought to avoid the decision we reach because it believed that “there is the potential that the couple will simply cease cohabitation in advance of that date to avoid the consequence if the Cohabitation Provision were to require that the recipient spouse ‘is cohabitating’ at the time of hearing or trial.” Scott, 2016 UT App 31, ¶ 34.
¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The present tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends upon the state of things at time of the action brought.’ . . . [The timeof-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.”) (citations omitted); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context); W. VA. CODE § 49-4-601(i) (requiring findings to be “based upon conditions existing at the time of the filing” in child abuse and neglect context); 38 U.S.C. § 109 (1991) (providing that no benefit “shall be extended to any person who is not a resident of the United States at the time of filing [a] claim”).
¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized, i.e., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple who has been warned a paying spouse is planning to move to terminate alimony could choose to stop cohabiting to avoid the termination. And, if that occurs, the continued payment of alimony would square with the policy behind alimony. See Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] from becoming a public charge” (citation omitted)); Myers v. Myers, 2010 UT App 74, ¶ 12, 231 P.3d 815 (stating that “the principal purpose of alimony is economic”). To the extent that a cohabitant might engage in subterfuge to create the appearance that the cohabiting has terminated when it has not, we trust our district courts and the adversarial system to do their best to detect efforts to manipulate the outcome. See generally Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996) (finding that boyfriend and former spouse resided together under Utah Code section 30-3-5(6) (1989) although boyfriend maintained a separate apartment, among other things).
II. Wife Is Not Entitled to Attorney Fees in Defending Husband’s Petition to Terminate Alimony
¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under Utah Code section 30-3-3. The statute provides for an award of attorney fees “in any action to establish . . . alimony” or “[i]n any action to enforce an order of . . . alimony”; it does not provide for attorney fees to defend an action to terminate alimony. UTAH CODE § 30-3-3(1), (2) (emphases added). Here, there is no allegation that Husband failed to continue to pay alimony. This is not a situation where the paying spouse stops paying and the receiving spouse must petition the district court to intervene and enforce its order. Thus, Wife’s efforts to resist Husband’s motion to terminate alimony are not compensable under Utah Code section 30-3-3’s plain language.
CONCLUSION
¶33 We conclude that Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony. We clarify that an appellee wishing to contest our review of an arguably unpreserved issue already reached by the court of appeals has an obligation to explain how the court of appeals erred in reaching the unpreserved issue. Finally, defending a motion to terminate alimony does not entitle the defending spouse to an award of attorney fees under Utah Code section 30-3-3.
Utah Family Law, LC | divorceutah.com | 801-466-9277