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2024 UT App 28 – Smith v. Smith

2024 UT App 28 – Smith v. Smith

THE UTAH COURT OF APPEALS

JACQUELINE P. SMITH, Appellee,  v. DANIEL H. SMITH, Appellant.

Opinion

No. 20220697-CA  Filed March 7, 2024  Third District Court, Salt Lake Department  The Honorable Robert P. Faust  No. 194902295

David Pedrazas, Attorney for Appellant

Deborah L. Bulkeley, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1        This divorce case illustrates why the sequence of determining alimony matters. We recently clarified the three-step procedure for alimony in Fox v. Fox, 2022 UT App 88, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Here, the district court ordered an alimony award of more than double the receiving spouse’s demonstrated need because it accounted for the marital standard of living at the end of the analysis instead of at the beginning. Because the district court employed a backward version of the three-step procedure for alimony, we vacate and remand.

BACKGROUND

¶2        Daniel H. and Jacqueline P. Smith separated after more than thirty years of marriage. Their divorce case proceeded to a one-day bench trial that mostly addressed alimony. Daniel[1] represented himself at trial. At the trial’s conclusion, the district court took several issues, including the alimony award, under advisement and issued a memorandum decision four days later.

¶3        On her financial declaration used at trial, Jacqueline indicated her monthly net income was $3,274.55 and her monthly expenses were $5,193.79. Jacqueline listed all her line-item expenses in the “current amount” column and left the “marital expenses” column blank. Jacqueline presented no evidence at trial of the parties’ marital standard of living and no evidence that any of her listed expenses were different during the marriage than they were at the time of trial. She testified only to the reasons she sought a divorce. The district court examined the expenses and adjusted some of the amounts, finding that Jacqueline had reasonable monthly expenses of $4,184.61. This left her with an unmet need of $910.06 per month.

¶4        Daniel’s financial declaration admitted at trial indicated his monthly net income was $7,757 and his monthly expenses—all listed in the “current amount” column and none in the “marital expenses” column—were $8,280. The district court similarly examined Daniel’s expenses and made adjustments, finding that Daniel had reasonable monthly expenses of $4,013.90 plus his child support obligation of $703 for a total monthly expense of $4,716.90, leaving him with a “positive income of $3,040.10 a month.”

¶5      The district court stated that it adjusted the parties’ expenses in “an effort to put them on relatively equal footing, recognizing that the parties’ level of expenses at the time of trial are not representative of their marital standard of living.” Rather than award Jacqueline alimony in the amount of her unmet need, the district court calculated alimony by equalizing the difference between Jacqueline’s monthly negative income and Daniel’s monthly positive income. The court reasoned that “it is fair and equitable to equalize the combined disparity of $3,950.16 per month” and awarded Jacqueline $1,975 per month in alimony. The alimony award exceeded Jacqueline’s demonstrated monthly need by $1,064.94.

¶6        The district court instructed Jacqueline’s counsel to draft proposed findings and a proposed decree based on the court’s ruling. Daniel, having obtained counsel since trial, objected to the proposed findings on multiple issues, including the alimony calculation. The district court entered the findings and decree without making any changes to the alimony award.

¶7        Daniel then filed a motion to amend the findings, arguing that the district court did not make sufficient findings to support an alimony award that exceeded Jacqueline’s demonstrated need. The district court held a hearing on the motion, and Daniel asked the court to “recalculate and redetermine the alimony” because a “spouse’s demonstrated need must constitute the maximum permissible alimony award.” The court explained the $1,975 alimony award “equalizes the net income of the parties for both of them. That keeps them akin as we can to the lifestyle to which they were accustomed during the time of the marriage.” Daniel asserted that equalization should occur only “when somebody has an excess need that the other party can’t meet.” And Jacqueline suggested the court make “some additional findings” to support what she viewed as its “appropriate” effort to consider the parties’ needs and “augment those needs with excess income.” The district court denied Daniel’s motion, leaving the alimony award at $1,975 per month.

ISSUE AND STANDARD OF REVIEW

¶8        Daniel challenges the district court’s alimony award.[2] “We review a court’s alimony determination for an abuse of discretion.” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). Although “we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up).

ANALYSIS

¶9        “Under Utah law, the primary purposes of alimony 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.” Fox v. Fox, 2022 UT App 88, ¶ 15, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). An alimony award need not provide “for only basic needs but should be fashioned” in such a way “to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (cleaned up). “The appropriate amount of any alimony award is governed by a multi-factor inquiry” now found in Utah Code section 30-3-5(10)(a). Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242. “[C]ourts must consider the statutory factors,” including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity,” and “the ability of the payor spouse to provide support.” Rule v. Rule, 2017 UT App 137, ¶ 13, 402 P.3d 153; see also Dahl v. Dahl, 2015 UT 79, ¶ 94, 459 P.3d 276.

¶10      Thus, there are three steps to “the established process to be followed by courts considering an award of alimony.” Fox, 2022 UT App 88, ¶ 20 (cleaned up); see also Rule, 2017 UT App 137, ¶ 19. First, a court must “assess the needs of the parties, in light of their marital standard of living.”[3] Fox, 2022 UT App 88, ¶ 20 (cleaned up). Second, a court “must determine the extent to which the receiving spouse is able to meet his or her own needs with his or her own income.” Id. (cleaned up). Third, a court must “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 receiving spouse’s needs and income.” Id. (cleaned up).

¶11      Here, the district court abused its discretion when it failed to properly follow this three-step process. Instead of considering the marital standard of living at step one when calculating each spouse’s need, the district court did so at step three, when it equalized the parties’ income. While we do not fault the court for wanting to “equalize the standards of living of each party,” as it is one of the purposes of alimony, see id. ¶ 15 (cleaned up), the court did not do so in accordance with the standards Utah appellate courts have established for an alimony determination.

¶12      In step one, the district court assessed both parties’ needs “at the time of trial” rather than in light of the marital standard of living. See id. ¶ 20. But it was not an abuse of discretion to have done so because neither Jacqueline nor Daniel provided any evidence of the marital standard of living. Indeed, both of their financial declarations listed their monthly expenses in the “current amount” column with nothing listed in the “marital expenses” column, despite the instructions on the form to complete both columns if one of the parties has requested alimony. It is incumbent upon the parties to present evidence of the marital standard of living if they want the district court to consider the expenses during the marriage that differ from the expenses at the time of trial. See Clarke v. Clarke, 2023 UT App 160, ¶ 62 (“If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts.”). And it is important that they provide such evidence, because step one—where the district court determines the parties’ reasonable expenses—is the place for taking the marital standard of living into account in the alimony calculation.

¶13      In step three, the district court then combined Jacqueline’s demonstrated need of $910.06 and David’s excess income of $3,040.10, “equalize[d] the combined disparity of $3,950.16,” and gave Jacqueline an alimony award of half that amount, $1,975. Daniel contends the district court should have capped the alimony award at the $910.06 monthly shortfall the district court calculated as the difference between Jacqueline’s income and her expenses. We agree with Daniel. “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (cleaned up); Rule, 2017 UT App 137, ¶ 17 (“The receiving spouse’s needs ultimately set the bounds for the maximum permissible alimony award.”); 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 even when the payor spouse has the ability to pay.”); Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (“[T]he spouse’s demonstrated need must . . . constitute the maximum permissible alimony award.”). Thus, the district court abused its discretion when it awarded Jacqueline alimony in an amount greater than her demonstrated need.

¶14 We also caution district courts that they “should not calculate alimony by simply dividing the couple’s pre-separation expenses in half,” Clarke, 2023 UT App 160, ¶ 57, or by “presumptively award[ing]” half of the “total money the parties spent each month during the marriage,” Fox, 2022 UT App 88, ¶ 25. In other words, the proper way to take the marital standard of living into account is at step one “by assessing a party’s claimed line-item expenses in light of that standard.” Clarke, 2023 UT App 160, ¶ 59.

¶15      Here, the district court abused its discretion at step three when it took the parties’ “combined disparity of $3,950.16” per month and awarded half of that amount to Jacqueline. Regardless of how much income the payor spouse may have, the purpose of alimony is to meet the demonstrated need of the recipient spouse, not to redistribute all the income between the spouses. See Roberts, 2014 UT App 211, ¶ 14 (“[T]he core function of alimony is therefore economic—it should not operate as a penalty against the payor nor a reward to the recipient.”). And although “we accord trial courts broad discretion in dividing the shortfall and apportioning that burden” in the third step, such discretion is premised on the assumption the court “has properly determined that a shortfall exists between the parties’ resources and needs.” Rule, 2017 UT App 137, ¶ 21.

¶16 Sequence matters. See id. ¶ 22 (“Once the court has determined that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” (emphases added)); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (holding that “attempting to equalize the parties’ income rather than going through the traditional needs analysis” constitutes an abuse of discretion). Just as it is an abuse of discretion to “skip[] over the traditional needs analysis and move[] directly to address what it perceives to be insufficient resources,” see Rule, 2017 UT App 137, ¶ 23, it was an abuse of discretion here when the district court used the marital standard of living at step three to increase the amount of the alimony award beyond the demonstrated need.

¶17      As a final note, we reiterate that it is proper for a district court to consider the marital standard of living during step one of the alimony analysis, so long as the parties have presented such evidence. We would normally vacate the alimony award and remand the matter to the district court “for the court to reassess its alimony determinations in light of the marital standard of living.” Id. ¶ 32. But here, neither party presented evidence of their expenses during the marriage. Indeed, they both left the “marital expenses” column on their financial declarations blank. As a result, there is no evidence in the record from which the district court can make findings that Jacqueline’s expenses were different from what she listed. Thus, the district court’s finding that her demonstrated need was $910.06 limits “the maximum permissible alimony award” to that amount. See Wellman v. Kawasaki, 2023 UT App 11, ¶ 12, 525 P.3d 139.

CONCLUSION

¶18      The district court abused its discretion when it employed the incorrect analysis in computing Jacqueline’s alimony award. The court did not follow the three-step process required by Utah law. Accordingly, we vacate and remand the case to the district court for entry of an alimony award of $910.06 per month.

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 for clarity, with no disrespect intended.

[2] Daniel also challenges the district court’s denial of his motion to amend the findings. But we need not reach this issue because we conclude the district court did not follow “the standards we have set” in its alimony calculation, see Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up), and we remand the case on that basis.

[3] “The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard.” Knight, 2023 UT App 86, ¶ 32. In terms of alimony, “the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions.” Id. (cleaned up).

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In Re K.K. – 2023 UT App 14 – Abuse and Neglect Adjudication

In re K.K. – 2023 UT App 14

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

B.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220051-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,

in which JUDGE GREGORY K. ORME concurred. JUDGE RYAN M.

HARRIS concurred, with opinion.

CHRISTIANSEN FORSTER, Judge:

¶1        This is a companion case to and arises out of the same facts involved in In re K.K., 2023 UT App 13, which also issues today. In short,[1] B.K. (Mother) and D.K. (Father) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a petition for custody and guardianship on the grounds that the Children were neglected and abused by Mother and Father. The underlying facts giving rise to the petition were multiple acts of domestic violence, culminating in a physical and boisterous verbal altercation between the couple that occurred on June 22, 2021, and that took place in front of the Children and other witnesses.

¶2        Following an adjudication trial on the petition, during which the juvenile court heard testimony from Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation, the court issued an order adjudicating the Children neglected and abused as to Mother.

¶3        In the adjudication order, the court found, among other things, that Mother and Father had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including on June 22; that when Mother and Father fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware they are sent downstairs because Mother and Father fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶4        As to Mother, the court found she was not yelling back at Father during the June 22 altercation but that she did yell at him on another occasion during which officers were dispatched to the house on a “domestic” call. In addition, the court found that Mother “is not concerned” that the Children witness her and Father fight and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Mother “has failed to protect the [C]hildren from exposure to domestic violence in the home” and that “[Father] and [Mother’s] domestic violence in their home has harmed the[] [C]hildren.”

ISSUES AND STANDARDS OF REVIEW

¶5        Mother now appeals the juvenile court’s neglect and abuse adjudications, asserting the court erred in determining that she neglected and abused the Children. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. In re E.R., 2021 UT 36, ¶ 15, 496 P.3d 58. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). And we review the juvenile court’s underlying legal determinations nondeferentially for correctness. See In re A.B., 2022 UT 39, ¶¶ 27–28.

ANALYSIS

¶6        Mother argues the juvenile court erred in determining that the State had proved by clear and convincing evidence that she neglected and abused the Children “by exposing them to domestic violence.” Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). “For a matter to be clear and convincing to a particular mind it must at least have reached the point where there remains no serious or substantial doubt as to the correctness of the conclusion.” In re S.Y.T., 2011 UT App 407, ¶ 42, 267 P.3d 930 (quotation simplified).

¶7        Because neglect and abuse are distinct, with different statutory definitions, we address Mother’s challenge to the juvenile court’s adjudications separately. With regard to Mother’s neglect adjudication, we conclude the court did not err in determining that she neglected the Children. As to the court’s abuse adjudication, we conclude that Mother, like Father, cannot show prejudice resulting from the abuse adjudication where the underlying facts giving rise to both adjudications are the same. Accordingly, we decline to address the merits of Mother’s challenge to the abuse adjudication.

I. Neglect

¶8        To prove that Mother neglected the Children, the State needed to present clear and convincing evidence that Mother’s “action[s] or inaction[s]” caused the Children to experience a “lack of proper parental care . . . by reason of the fault or habits of” Mother or that Mother “fail[ed] or refus[ed] . . . to provide proper . . . care necessary for [the Children’s] health, safety, morals, or well-being.” See Utah Code § 80-1-102(58)(a)(ii)–(iii). Mother argues the juvenile court’s conclusion that she neglected the Children by “‘allowing’ them to be exposed to her abuse at Father’s hands” does not satisfy the statutory definition of neglect. She further contends that the court “engaged in unwarranted assumptions that are contrary to the well-settled notions underlying the Battered Woman Syndrome” by concluding that Mother’s “behavior constituted ‘nonaccidental’ conduct or that her behavior was due to her ‘faults or habits.’” We disagree.

¶9        The evidence presented at trial included testimony from six witnesses who detailed Father and Mother’s history of engaging in domestic disputes with each other and specifically described the altercation that occurred on June 22. The testimony indicated that two of the children were present during the June 22 altercation and were observed “clinging” to Mother outside in the front yard while Father argued with her, punched her, and threw objects at her. One of the officers who responded to the June 22 altercation testified that the two children who had witnessed the altercation “seemed calm” and were not “distraught or flustered at all.”[2] The officers acknowledged they had been called to Mother and Father’s house prior to the June 22 altercation on a “domestic” call after neighbors reported Mother and Father were screaming at each other.

¶10 Mother also testified that on many occasions she tried to prevent the Children from observing her and Father fight. To accomplish this, “as soon as any argument started” she would send the Children downstairs with her roommate, where they would wait until the fight was over. Despite making this effort, Mother testified that she believed the Children were aware they were sent downstairs to avoid hearing any fighting. Moreover, the evidence also showed that Mother repeatedly allowed Father to return home after the court issued a criminal no contact/protective order and that she minimized the severity of the domestic violence. Mother was also largely unwilling to testify at trial about the June 22 altercation, claiming that she had “trouble remembering” much of what happened. Based on this evidence, the juvenile court found, “[Mother] is not concerned that the [C]hildren are subjected to the argument[s] between [Mother] and [Father]. [Mother’s] demeanor and testimony is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.”

¶11      As described above, in its adjudication order, the juvenile court made several findings in support of its determination of neglect as to Mother. Those findings address Mother’s ongoing relationship with Father and the violent dynamic of their relationship, Mother’s knowledge that the Children were aware of her fights with Father despite her attempts to shield them from the violence, and Mother’s apparent lack of concern or desire to extricate herself from future interactions with Father. Under Utah law, a parent “ha[s] a statutory duty not to knowingly place [their] child in harm’s way.” In re C.B., 1999 UT App 293, ¶ 9, 989 P.2d 76. By voluntarily returning to the abusive relationship with Father, Mother ignored this duty by “potentially subjecting the [Children] to witness, or be the victim of, further abuse.” See id. Moreover, as discussed in In re C.C.W., 2019 UT App 34, 440 P.3d 749, a parent’s act of domestic violence can have adverse impacts on a child, even if there is no evidence of violence toward the child and even if the child does not directly witness the violence. Relying on “both common sense and expert opinion,” this court recognized that children who are exposed to domestic violence may suffer “direct physical and psychological injuries,” regardless of whether they are physically harmed. Id. ¶¶ 20–21 (quotation simplified). Among other things, children who observe domestic violence “may be taught that violence is an acceptable way to handle issues with loved ones,” which “breeds a culture of violence in future generations. . . . Abused children are at great risk of becoming abusive parents.” Id. ¶ 20 (quotation simplified). Although it is unfortunate that Mother is a victim of domestic violence, her decision to knowingly return to Father and to protect him rather than to protect the Children despite her knowledge that the Children are aware of the abuse in the home satisfies the statutory definition of neglect.

¶12      We recognize that most, if not all, of the domestic violence at issue in this case was committed by Father against Mother and that Mother was therefore often the victim rather than the perpetrator. But under Utah’s statutory definition of neglect, under certain circumstances, even victims of domestic violence can “neglect” their children if they fail to take sufficient steps to protect them from the domestic violence present in the home or if they choose to prioritize their relationship with the perpetrator of the violence over the need to protect their children. After all, neglect can stem from either “action or inaction” on the part of a parent, see Utah Code § 80-1-102(58)(a), as long as the “inaction” in question causes either “lack of proper parental care of a child by reason of the fault or habits of the parent” or “failure or refusal of a parent . . . to provide . . . care necessary for the child’s health, safety, morals, or well-being,” see id. § 80-1-102(58)(a)(ii)–(iii). Here, the juvenile court found that Mother was “not concerned” about protecting the Children from domestic violence and that Mother had a “desire to protect [Father] rather than address the domestic violence that exists in her home.” These findings were supported by substantial evidence presented at trial. And these facts, as found by the court, constitute “neglect” as our legislature has defined that term. In short, Mother’s “inaction” in failing to protect the Children from exposure to domestic violence and prioritizing her toxic relationship with Father resulted in a failure to provide the “care necessary for [the Children’s] health, safety, morals, or well-being” and caused the Children to experience a “lack of proper parental care.” See id.

¶13      Mother resists this conclusion by contending the juvenile court improperly relied on In re C.C.W. for “the proposition that children are harmed by domestic violence in the home.” She asserts the court’s reliance on In re C.C.W. was unwarranted because that case concerned a proceeding to terminate parental rights whereas this case concerns abuse and neglect adjudications. While Mother is correct that the two proceedings are different, those differences do not bear on whether the court could properly rely on the research and studies cited in In re C.C.W. supporting the general proposition that domestic violence is harmful to children. See 2019 UT App 34, ¶ 20. Termination proceedings and abuse and neglect adjudications are both governed by the Utah Juvenile Code, see Utah Code § 80-4-301 (termination of parental rights); id. § 80-3-201 (abuse or neglect proceedings), and the statutory definitions of “neglect,” “abuse,” “harm,” and “threatened harm” are the same in both proceedings, see id. § 80­1-102(1), (37), (58)(a), (92) (providing definitions applicable to provisions of Title 80, Utah Juvenile Code). Accordingly, it does not follow that the court may properly consider the effect of domestic violence in finding neglect in one proceeding but not the other.

¶14      In addition, Mother asserts that the juvenile court “rel[ied] on the unfounded presumption that Mother’s decision to maintain a relationship with Father constituted a conscious failure to protect the Children from exposure to domestic violence.” In so doing, Mother posits that the juvenile court ignored the directive offered in In re C.C.W. cautioning courts “to avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer, or from a battered spouse’s decision to decline to immediately seek help.” See 2019 UT App 34, ¶ 19 n.4. But that is not what happened here.

¶15      In this case, the juvenile court analyzed the evidence before it in adjudicating Mother for neglect. Thus, the court’s conclusion was not based on an unfounded presumption. As previously discussed, the evidence the court considered included testimony that Father had engaged in multiple acts of domestic violence in the presence of the Children. And based on Father’s multi-year track record of assaulting Mother, even after services were provided to him, the court could reasonably conclude that Father is likely to continue perpetrating acts of domestic violence against Mother in the future and that the Children will continue to be exposed to the violence if Mother fails to take action. In short, the court’s determination that Mother failed to provide the proper care for the Children’s health, safety, morals, or well-being by failing to protect them and prioritizing her relationship with Father was based on the evidence presented at trial and not on an unwarranted presumption.

¶16      Finally, Mother misconstrues the directive offered in In re C.C.W. cautioning courts to “avoid unnecessarily drawing negative inferences from a battered spouse’s decision to maintain a relationship with the batterer.” See id. Mother contends that by adjudicating her for neglect, the juvenile court made an “automatic determination that both the batterer and victim are responsible as a unit,” which in turn results in the victim being blamed for the domestic violence. While we are sympathetic to Mother and acknowledge that extricating oneself from an abusive relationship can often prove difficult, see In re L.M., 2019 UT App 174, ¶ 9, 453 P.3d 651 (per curiam); In re C.C., 2017 UT App 134, ¶¶ 46–48, 402 P.3d 17 (Christiansen, J., concurring), we cannot say that a parent’s status as a domestic violence victim excuses the parent’s duty to protect the children or provides the parent with license to elevate the relationship with the abuser over the safety of the children. Indeed, the directive offered in In re C.C.W. merely cautions courts to “avoid unnecessarily drawing negative inferences” about a victim’s decision to stay in an abusive relationship. 2019 UT App 34, ¶ 19 n.4. It does not prevent the court from considering domestic violence issues in their entirety, nor does it provide absolution for a parent who continues to expose a child to domestic violence. To find otherwise would be contrary to precedent. See, e.g.In re L.M., 2019 UT App 174, ¶ 8 (“A parent who maintains a relationship with an abusive partner jeopardizes a child’s safety.”); In re T.M., 2006 UT App 435, ¶ 20, 147 P.3d 529 (collecting cases and observing that “Utah case law indicates that courts have minimal empathy for parents whose strong emotional ties to their spouses or significant others jeopardize their children’s safety”).

¶17      Accordingly, we affirm the court’s neglect adjudication.

II. Abuse

¶18      The juvenile court determined that Mother both neglected and abused the Children by failing to protect them from exposure to domestic violence and that Father and Mother’s “domestic violence in their home has harmed the[] [C]hildren.” Mother argues the court’s abuse adjudication was in error because the State failed to produce clear and convincing evidence of abuse as it is statutorily defined. See Utah Code § 80-1-102(1)(a)(i)(A)–(B), (37)(a)–(b) (defining abuse as including “nonaccidental harm of a child” and “threatened harm of a child” and defining harm as “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning”). Mother raises a fair point that other than applying the general principles set forth in In re C.C.W. to infer harm, the State did not present specific evidence that the Children had sustained harm, and the court made no specific findings—other than that the Children appeared calm during incidents of domestic violence between their parents—that the Children were developmentally harmed or suffered the sort of emotional damage that constituted serious impairment to their growth, development, behavior, or psychological functioning.[3]

¶19      But even if we were to agree with Mother that the juvenile court erred in adjudicating the Children as abused as to Mother, Mother cannot show she was prejudiced by any such error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). Mother claims that being labeled an abuser “negatively affect[s] her ability—going forward—to perform the primary caretaking responsibilities to [the] Children.” But Mother does not demonstrate how the court’s abuse adjudication will affect her more severely or more negatively as this case proceeds than the neglect adjudication will. See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”). Indeed, post-adjudication dispositions turn on the factual circumstances that bring a family into court rather than on the category of adjudication and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See Utah Code § 80-3-405. Here, as found by the juvenile court, whether her inaction is labeled as abuse or neglect, Mother failed to protect the Children from exposure to domestic violence and prioritized her relationship with Father over the well-being of the Children. The services that will be offered to Mother and the Children to remedy these circumstances are not likely to differ based on whether the adjudication is for neglect or abuse. We agree with the guardian ad litem’s assertion that “any or all three categories of adjudication (abuse, neglect, dependency) trigger the same dispositional provisions.” Accordingly, because Mother has not demonstrated how the court’s abuse adjudication will affect her any differently than the neglect adjudication, she cannot show prejudice.[4] See In re K.K., 2023 UT App 13, ¶ 28 (concluding, based on the same facts as the current case, that Father could not show prejudice stemming from the court’s abuse adjudication because the abuse adjudication was based on the same underlying facts supporting the neglect adjudication).

CONCLUSION

¶20 We are cognizant that Mother is a victim of domestic violence, not a perpetrator. Nevertheless, the primary purpose of the State’s petition alleging neglect was to protect the Children, not to punish Mother. Based on the foregoing, we conclude the evidence presented by the State was sufficient to support the juvenile court’s neglect adjudication as to Mother. And even if the juvenile court erred in its abuse adjudication, Mother has not persuaded us that she was prejudiced by any such error because she has not shown how she will be negatively affected by the abuse adjudication over and above the effect of her neglect adjudication. Accordingly, we affirm.

_____________

HARRIS, Judge (concurring):

¶21      I concur fully in the majority opinion. I write separately to offer a word of caution to juvenile courts when it comes to finding that a parent who is a victim of domestic violence has “abused” or “neglected” his or her children by allowing them to be exposed to domestic violence in the home. In my view, Utah’s statutory definitions of the terms “abuse” and “neglect” are broad enough to make it possible, in certain situations, for courts to determine that a domestic violence victim has committed abuse or neglect. But courts should exercise caution in doing so, and should make these rather striking findings only in appropriate cases.

¶22 With regard to neglect, we hold today that the juvenile court’s determination was appropriate in this case, because Mother’s “inaction” in failing to protect the Children from the domestic violence occurring in the home constituted a lack of proper parental care, as well as a failure to provide care necessary for the Children’s health, safety, or well-being. See supra ¶¶ 8–16; see also Utah Code Ann. § 80-1-102(58)(a)(ii)–(iii) (LexisNexis Supp. 2022). In my view, the key to affirming this determination, in this case, was the court’s finding that Mother had prioritized her relationship with her abuser over the safety and well-being of the Children. Evidence presented at trial indicated that Mother repeatedly allowed Father to return to the home despite the existence of protective orders making it unlawful for him to be there, and that she was less than fully cooperative with DCFS and law enforcement officials who were investigating the situation. This sort of evidence, to my way of thinking, is critical to any determination that a domestic violence victim has neglected his or her children. Absent evidence like this, domestic violence victims will likely not have committed actions or inactions significant enough to constitute “neglect” of their children.

¶23      And given the differing statutory definitions, it is even more difficult for domestic violence victims to be considered to have “abused” their children than it is for them to be considered to have “neglected” their children. The statutory definition of “abuse” is (justifiably) narrower than the statutory definition of “neglect.” In order to find that abuse has occurred, a court in most cases (that is, in cases not involving sexual exploitation, sexual abuse, human trafficking, or the child’s death) must find either (a) “nonaccidental harm of a child” or (b) “threatened harm of a child.” See id. § 80-1-102(1)(a)(i)(A), (B); see also In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91 (“To find abuse under Utah law, a court must find harm.”).

¶24 A finding that a child has sustained nonaccidental harm involves a backward-looking determination, one that must be supported by evidence that the child has already been harmed. And the kind of harm at issue—according to strict statutory definition—must be either “physical or developmental injury or damage” or the sort of “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a), (b). I can envision a court, in many cases, being able to make a finding of physical harm without the necessity of expert testimony, but in my view a finding of already-sustained “developmental injury or damage” or emotional damage severe enough to cause “a serious impairment in the child’s growth, development, behavior, or psychological functioning” will often require expert testimony. I think this will nearly always be the case where the question presented is whether a child has already sustained non-physical “harm” as a result of a victim parent failing to protect the child from violence in the home.

¶25      A finding that a child has sustained “threatened harm” is— by contrast—more of a forward-looking inquiry, under the applicable statutory definition. As our legislature has defined it in this context, “threatened harm means actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” See Utah Code Ann. § 80-1­102(92) (emphasis added). A child can sustain “threatened harm” even if the child has not yet sustained actual “harm.” Pursuant to statutory definition, a child sustains “threatened harm” when, through the “actions” or “inactions” of a parent, the child is placed at “unreasonable risk” of future “developmental injury or damage” or “emotional damage” severe enough to seriously impair the “child’s growth, development, behavior, or psychological functioning.” See id. § 80-1-102(37)(a)–(b), 102(92). In cases involving parents who are victims of domestic violence, a juvenile court could perhaps more easily make a finding of “threatened harm” than already-sustained past harm. Indeed, we have already recognized that “domestic violence can have adverse impacts on a child, even if that child is not the direct object of such violence, and even if the child does not directly witness the violence.” See In re C.C.W., 2019 UT App 34, ¶ 20, 440 P.3d 749. A parent victim’s failure to adequately protect a child from violence in the home could—if the violence was frequent and severe enough, and likely to continue in the future—lead to a supported finding that the parent, through inaction, has placed the child at an unreasonable risk of future developmental damage. It may even be possible, in appropriate cases, for such a finding to be made without expert testimony.

¶26      But in order to reach “abuse” through “threatened harm” in cases involving victims of domestic violence, a court must make specific and supported findings regarding each of the elements of the statutory definition. First, a court must specify that it is finding “abuse” by way of “threatened harm” (as opposed to through a finding of already-sustained “nonaccidental harm”). Second, the court must make a detailed finding of threatened harm on the facts of the case at hand, including specific identification of the “action or inaction” taken by the parent that leads to the “unreasonable risk” of future harm, as well as a satisfactory explanation of why the risk of future harm is “unreasonable.” Third, the court must specify the type of future harm it believes the child is at risk of sustaining, whether it be developmental injury or severe emotional damage, and should explain—with reference to specific evidence in the record—why the court believes the child is likely to sustain that particular type of harm.

¶27 In short, Utah’s statutory definitions of “neglect” and “abuse” are broad enough to allow courts, in appropriate cases, to find that a parent who is the victim of domestic violence has committed neglect or abuse by failing to protect his or her child from domestic violence in the home. But courts should exercise caution in so doing, and should reserve such findings for those cases in which the domestic violence is severe and sustained and in which the victim parent has taken specific actions or inactions aimed at prioritizing his or her relationship with the abuser over care and protection of the children.

¶28      In this case, I concur in the majority’s view that the court made appropriate findings of neglect with regard to Mother. I also concur in the majority’s decision not to reach the merits of the propriety of the court’s findings regarding abuse as to Mother, but I register serious reservations about the adequacy and sufficiency of those findings, and urge courts to exercise caution in making neglect and abuse determinations in situations like this one.

 

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[1] A more fulsome description of the relevant facts and procedural history can be found in In re K.K., 2023 UT App 13, the case in which we adjudicated Father’s appeal. In this case, we adjudicate Mother’s appeal.

[2] The juvenile court did not take this evidence to mean that the Children had not been adversely affected by their parents’ inappropriate behavior. Rather, the inference drawn by the court was that the parental conflict had been so pervasive that the Children had become somewhat numb to it.

[3] We do not intend to suggest the State could never demonstrate that a parent who is the victim of domestic violence has “abused” his or her children, as that term is statutorily defined. We agree with the general sentiments expressed in the concurring opinion that such a path is possible but is more difficult than demonstrating “neglect” and would require specific evidence and findings. See infra ¶¶ 22–27.

[4] In fact, a review of the underlying docket in Mother’s case reveals that Mother and the Children have done so well in their treatment and services that the juvenile court released the Children from DCFS’s protective supervision and terminated the court’s jurisdiction last fall.

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In re K.K. – 2023 UT App 13

In re K.K. – 2023 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF K.K., S.K., AND S.K.,

PERSONS UNDER EIGHTEEN YEARS OF AGE.

D.K.,

Appellant,

v.

STATE OF UTAH,

Appellee.

Opinion

No. 20220050-CA

Filed February 9, 2023

Second District Juvenile Court, Farmington Department

The Honorable Sharon S. Sipes

No. 1176751

Freyja Johnson, Emily Adams, and Hannah K.

Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, John M. Peterson, and Candace

Roach, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        D.K. (Father) and B.K. (Mother) are the parents of triplets K.K., S.K., and S.K. (collectively, the Children). When the Children were six years old, the State filed a child welfare petition for custody and guardianship on the grounds that the Children were neglected and abused by Father and Mother. Following an adjudication hearing on the petition, the juvenile court issued an order adjudicating the Children as neglected and abused.

¶2        Father now appeals the juvenile court’s abuse adjudication, arguing that the State failed to prove by clear and convincing evidence that he abused the Children. We affirm.

BACKGROUND

¶3        In 2019, when the Children were four years old, the State filed a petition seeking protective supervision services based on allegations that Father and Mother had engaged in repeated acts of domestic violence in front of the Children. Thereafter, Father and Mother agreed to engage in services voluntarily, and the State eventually dismissed its petition.

¶4        Two years later, however, Father and Mother again engaged in a series of domestic violence incidents that involved law enforcement. In May 2021, Father called the police and told them that Mother had “beat him up.” When officers arrived on scene and talked to Father, he told them he and Mother were “fighting about money” and that Mother “swung to hit him but never touched him.” On June 10, officers were again dispatched to the family home on a “domestic” call because Father and Mother were “screaming at each other with the [C]hildren in the home.” When officers arrived, they could hear the screaming. Father was uncooperative with the officers, but he eventually left the home. However, Father returned to the home later that same night.

¶5        On June 22, Father and Mother were involved in an altercation that led the State to seek custody and guardianship of the Children. During this altercation, Father and Mother were arguing inside the home. Mother was sitting on the couch, and Father sat on top of her demanding that she give him the keys to the car. Father then “head butted” Mother and told her to get out of the home, which she did. Once Mother was outside, Father followed her and began punching her “with a closed fist on the side of her stomach.” Father proceeded to grab a large rock and chase Mother around the car, “acting like he was going to throw the rock at her.” The Children were outside of the home for the duration of the altercation and witnessed Father chasing Mother and hitting her. Several neighbors also witnessed the altercation and called the police. When officers arrived, Father was arrested and taken to jail.

¶6        After Father’s arrest, Mother completed a lethality assessment, an evaluation given to assess the level of danger an abused person faces, which resulted in a score of high risk. Mother did not seek a protective order for herself or for the Children during the eight days Father was in jail. However, due to the severity of the prior altercation, the district court entered a criminal no contact/protective order on July 1. The order prohibited Father from residing with Mother and the Children.

¶7        On July 8, a caseworker from the Department of Child and Family Services (DCFS) went to the home for an unannounced visit. During the visit, the caseworker found Father outside; Father reported that Mother was inside sleeping. Father allowed the caseworker to interview the Children. During the interview, the Children reported that Father and Mother “fight and yell” and “hurt each other’s bodies.” Father was subsequently arrested for violation of the criminal no contact/protective order. Thereafter, the caseworker attempted to talk to Mother, who had been inside sleeping, but Mother refused to speak with the caseworker.

¶8        Based on the foregoing, the State filed a petition for custody and guardianship of the Children on the grounds that they were neglected and abused based on Father and Mother engaging in domestic violence in the home. Following a shelter hearing, the juvenile court determined the Children should remain in Mother’s custody for the time being but ordered Mother and the Children to have “absolutely no contact” with Father and that Mother “immediately notify law enforcement” if Father appeared at the home.

¶9        Following a series of pretrial hearings, the matter proceeded to an adjudication trial in December 2021. At trial, the State presented the testimony of six witnesses: Mother, Father, two neighbors who had witnessed the June 22 altercation, and two police officers who had responded to the neighbors’ 911 calls regarding the June 22 altercation.

¶10 According to the neighbors, Father and Mother were arguing about car keys. As Father approached Mother, “she put her arms out to stop him . . . and he slapped her hands aside.” Father then began punching Mother “haymaker style” to her side and stomach. The punching continued “for a minute or two,” and Father connected “five to ten” times. After the punching stopped, Father chased Mother around the front yard, “throwing rocks” and “bikes and other toys” in the direction of Mother, although the neighbors did not see any of the objects hit Mother.

¶11      The neighbors testified that during the altercation, two of the Children were in the front yard “standing behind [Mother]” and “clinging” to her. Mother was positioned between Father and the two children, acting as a “buffer” between them. One neighbor opined that he did not “believe any [of Father’s] aggression was towards the children,” and that “at no[] point did [he] think [the two children] were in any sort of danger.” However, the two children were outside the entire time, “seeing everything.”

¶12      In addition, one neighbor testified that she had witnessed Father and Mother “screaming” at each other multiple times in the presence of the Children prior to the June 22 altercation. Moreover, the neighbor had witnessed Father yelling at the Children twice and had observed that the Children “are terrified and trying to do whatever [Father] says to not be in trouble.”

¶13      The responding officers testified next. One officer testified that after arriving at the scene on June 22, he interviewed Mother, who told him that she had been arguing with Father over car keys. During the argument, Father “sat down on her” to keep her from leaving, headbutted her in the forehead, and “punched her in the back of the leg.” After Mother jumped out the window to the front yard, Father followed her and the two continued arguing. Father chased Mother around a vehicle parked in the front yard; once he caught her, he began “punching her in the side underneath her arms with a closed fist.” Mother was able to break away, but Father chased her with a rock in his hands. Mother told the officer the Children were outside with her during the altercation.

¶14      The officer also interviewed Father about the altercation. Father said he was “upset” because Mother hid the car keys from him but that “nothing got physical.” Father told the officer he and Mother had argued and run around the vehicle in the front yard. Father indicated that he had picked up a rock and held it over his head, but he did not throw it, nor did he intend to.

¶15      Lastly, the officer testified regarding his observations of the Children. When the officer arrived at the scene, the Children were inside the house. The officer interviewed Mother while she was standing at the front door. During the interview, the officer saw “at least two” of the Children standing by the front door behind Mother and “one of the kids popped his head outside” and asked for stickers. Officer opined that the Children’s demeanor “seemed calm.” The Children seemed “a little upset that some toys were . . . strewn about the front yard,” but otherwise they did not seem “distraught or flustered” by the altercation.

¶16      Mother testified that the June 22 incident started when she refused to give Father the keys to the car. Mother explained that she could not remember all the details about the altercation because she has “trouble remembering things.” However, she did remember that the altercation began when Father headbutted her in the house. After the headbutt, Father and Mother went outside to the front yard. Although Mother did not remember whether Father hit her in the yard, she recalled that he “didn’t follow [her] around the yard,” that he picked up a basket and “threw it up in the air” but not “at” her, and that he “picked up a rock” but did not chase her while holding it. Mother maintained that the Children had not observed the altercation because they were downstairs inside the house with a roommate where they stayed until the officers arrived.

¶17      Mother also testified that the Children “were never present for full on arguments or yelling.” She explained that “as soon as any argument started,” her roommate would take the Children downstairs so they would not be able to hear the fighting. Although Mother did not believe the Children had been impacted by the fighting, she did believe the Children were aware that they were sent downstairs to avoid hearing any fighting.

¶18 Father testified last. When asked about the June 22 altercation he invoked his Fifth Amendment right not to testify because criminal charges were pending against him regarding that incident. But Father explained that “before” he and Mother would engage in any verbal arguments, the Children would go downstairs.

¶19      After considering all the evidence, the juvenile court issued an adjudication order. In the order the court found, among other things, that Father and Mother had engaged in numerous acts of domestic violence, some of which had occurred in the presence of the Children, including the one on June 22; that when Father and Mother fight they sometimes send the Children downstairs to wait with a roommate, which had occurred two or three times that year; that the Children are aware that they are sent downstairs because Father and Mother fight; that “[a]ccording to the [C]hildren, [Father] and [Mother] fight and yell and hurt each other’s bodies”; and that “[t]he [C]hildren have experienced domestic violence with enough frequency that they appear calm during incidents between their parents . . . even though the parents ‘fight a lot and hurt’ each other.”

¶20 As to Father, the court drew a number of adverse inferences based on his decision to invoke his constitutional right to silence when asked specific questions about the June 22 altercation. And as to Mother, the court found that she “is not concerned” about the Children witnessing her and Father fighting and that her “demeanor and testimony”—including her inability to recall much of what happened on June 22—“is in tune with her desire to protect [Father] rather than address the domestic violence that exists in her home.” Based on these findings, the court concluded that Father “failed to provide proper care necessary for the health, safety, morals and well-being of the children in that he has engaged in domestic violence with [Mother], and [both Father and Mother] failed to protect the [C]hildren from exposure to domestic violence in the home.” The court also concluded that “[Father] and [Mother’s] domestic violence in their home has harmed [the Children]” and, accordingly, adjudicated the Children as neglected and abused as to Father.

ISSUE AND STANDARD OF REVIEW

¶21 Father now appeals only the juvenile court’s abuse adjudication, arguing that the court’s ruling was in error because the State failed to prove by clear and convincing evidence that he had harmed or threatened harm to the Children. “We apply differing standards of review to findings of fact, conclusions of law, and determinations of mixed questions of law and fact.” In re E.R., 2021 UT 36, ¶ 14, 496 P.3d 58. We review the juvenile court’s factual findings deferentially, reversing the court’s findings only if they are clearly erroneous. Id. ¶ 15. A finding is clearly erroneous when the court either “failed to consider all of the facts or reached a decision against the clear weight of the evidence.” Id. ¶ 32 (quotation simplified). However, the question of whether the juvenile court properly applied the governing law to the facts of the case presents “a law-like mixed question subject to nondeferential review.” In re A.B., 2022 UT 39, ¶ 27.

ANALYSIS

¶22      At an adjudication trial, the juvenile court must determine whether “the allegations contained in the abuse, neglect, or dependency petition are true” by “clear and convincing evidence.” Utah Code § 80-3-402(1). Clear and convincing evidence is an “intermediate standard of proof” that “implies something more than the usual requirement of a preponderance . . . of the evidence; and something less than proof beyond a reasonable doubt.” Essential Botanical Farms, LC v. Kay, 2011 UT 71, ¶¶ 21, 24, 270 P.3d 430 (quotation simplified). Put differently, this standard requires “the existence of facts that make a conclusion very highly probable.” Id. ¶ 24 (quotation simplified).

¶23      As relevant here, “abuse” is defined as the “nonaccidental harm of a child” or the “threatened harm of a child.” Utah Code § 80-1-102(1)(a)(i)(A), (B). Thus, “[t]o find abuse under Utah law, a court must find harm.” In re K.T., 2017 UT 44, ¶ 9, 424 P.3d 91. “Harm” includes “physical or developmental injury or damage” and “emotional damage that results in a serious impairment in the child’s growth, development, behavior, or psychological functioning.” Utah Code § 80-1-102(37)(a), (b). And “[t]hreatened harm” is defined as “actions, inactions, or credible verbal threats, indicating that the child is at an unreasonable risk of harm or neglect.” Id. § 80-1-102(92).

¶24      As applied to this case, to satisfy the clear and convincing standard, the State “needed to present evidence that would allow the [juvenile] court to conclude that it was very highly probable that the [C]hildren had been harmed.” See In re K.T., 2017 UT 44, ¶ 9 n.3 (quotation simplified). In reaching this conclusion the court may properly “infer harm” based on the evidence presented. Id. ¶ 14. However, the court may not “speculate” about the existence of harm absent clear and convincing evidence demonstrating the actions actually resulted in harm. Id. ¶¶ 14–17.

¶25 After considering the evidence presented during the adjudication trial, the juvenile court concluded the Children were abused because “[Father] and [Mother’s] domestic violence in their home has harmed [the Children].” Father argues the court’s conclusion was in error because the State failed to produce clear and convincing evidence that he physically harmed the Children or that the Children were developmentally harmed or emotionally damaged by observing Father assault Mother and Father and Mother argue. But even if we were to agree with Father that the State failed to present sufficient evidence that Father harmed the Children and were to agree that the juvenile court erred in adjudicating Father as abusing the Children, Father has not demonstrated that he was prejudiced by the alleged error. See In re N.M., 2018 UT App 141, ¶ 27, 427 P.3d 1239 (“An error is prejudicial only if a review of the record persuades the appellate court that without the error there was a reasonable likelihood of a more favorable result for the appellant.” (quotation simplified)); In re. J.B., 2002 UT App 268, ¶¶ 8–12, 53 P.3d 968 (affirming the termination of a father’s parental rights despite the juvenile court’s reliance on improper findings because such reliance did not result in “prejudicial error”). As noted above, the court adjudicated the Children as both neglected and abused, and Father appeals only the court’s abuse adjudication. Although Father is correct that “[a]buse and neglect are statutorily defined and given ‘distinct statuses’” and that “[u]nder the statutory definitions . . . abuse requires a higher level of improper conduct from a parent than neglect,” that distinction has no bearing in this case—and Father has not shown that it is likely to have any bearing in the future—because the court’s adjudications of neglect and abuse were based on the same underlying incidents of domestic violence.

¶26 When a juvenile court adjudicates a child as either neglected or abused, that determination brings the child within the jurisdiction of the court and allows the court to enter dispositional orders. See Utah Code § 80-3-402. The dispositions available to the court do not hinge on whether the child was adjudicated as neglected or abused. Instead, dispositions are tied to the factual findings about what is going on in the case and are implemented based on concern for the child’s health and safety and remedying the underlying issues resulting in the adjudication. See id. § 80-3-405.

¶27 Here, the juvenile court’s disposition is governed by the need to address Father’s commission of domestic violence in the presence of the Children and the risk such behavior will continue. Services to address this behavior will not differ whether the underlying adjudication is labeled as neglect or abuse because the court’s neglect determination was based on the same underlying facts as the abuse determination: here, Father’s failure to protect and to provide proper care for the Children as a result of his engaging in acts of domestic violence.[1]

¶28      Father cites this court’s decision in In re C.M.R., 2020 UT App 114, 473 P.3d 184, for the proposition that Father was harmed by the court’s abuse adjudication, asserting that the findings of abuse in the adjudication order “will form the basis for whether [Father] is able to comply with the requirements of [any service plan] going forward and whether [Father] can be reunited with the Children.” See id. ¶ 28. But unlike the mother in In re C.M.R., who was potentially prejudiced by entering admissions to allegations regarding a specific additional incident of abuse at the adjudication hearing, Father’s abuse adjudication was based on the exact same underlying set of facts as his neglect adjudication. In this case, Father has not challenged the juvenile court’s neglect adjudication, nor has he challenged the court’s underlying factual findings—which support both the neglect and the abuse adjudications—that he assaulted Mother in the presence of the Children and repeatedly engaged in heated verbal arguments with her. Those underlying actions, which form the foundation for both adjudications, are the reason why he “can only have supervised visitation with [the] Children” and why “[h]e is not allowed in the home,” and not because the court adjudicated the Children as abused in addition to neglected. Because Father has not challenged the neglect adjudication or demonstrated how the ramifications flowing from this unchallenged adjudication would be less severe than those resulting from an abuse adjudication, he has not demonstrated that he has sustained any prejudice as a result of the court’s abuse adjudication.[2] See In re G.B., 2022 UT App 98, ¶ 34, 516 P.3d 781 (declining to reach the merits of a challenge to an abuse adjudication where the parent did not challenge a neglect adjudication based on the same facts because the parent did not demonstrate that the abuse adjudication carried “some collateral consequences . . . that [did] not follow from a neglect determination”).

 

CONCLUSION

¶29 On appeal, Father does not challenge the juvenile court’s findings that he committed domestic violence in the presence of the Children or that those actions resulted in him neglecting the Children by failing to provide them proper care and to protect them from exposure to domestic violence. Under these circumstances, even if the juvenile court erred in its separate abuse adjudication—a conclusion we stop short of reaching—Father has not demonstrated he was prejudiced by any such error because he has not challenged the court’s neglect adjudication or the facts underlying it, which are the same facts underlying the court’s abuse adjudication, and any court-ordered disposition will be based upon Father’s own acts and not the adjudication of abuse.

¶30 Affirmed.

______________

[1] In his reply brief Father argues he was harmed by the juvenile court’s abuse adjudication because “an abuse adjudication goes into a central abuse registry system managed by DCFS” and “the information in that registry is used for licensing purposes and prevents individuals who have been adjudicated of abuse from holding licenses in certain professions.” But this argument misses the mark. While Father correctly notes that the abuse registry system—called the Management Information System (the MIS)— can be accessed by the State for all future cases involving Father, see Utah Code § 80-2-1001, he conflates the MIS with a “sub-part” of the MIS called the Licensing Information System (the LIS), see id. § 80-2-1002(1)(a)(i). Information on the MIS includes facts relevant to each child welfare case, whereas the LIS is maintained for “licensing purposes.” See id. § 80-2-1002(1)(a)(i). Although an individual on the LIS may be prohibited from, among other things, holding licenses in certain professions, see id. § 80-2-708(2)(a)(v), inclusion on the LIS is not automatic in every child welfare case. Rather, the LIS identifies only individuals found to have committed a “severe type of child abuse or neglect.” See id. § 80-2-708(1). Because the court did not adjudicate Father as severely abusing the Children, inclusion on the LIS does not automatically follow, and Father has not asserted that he has been—or is likely to be—included therein. Accordingly, Father has not demonstrated that, in this case, he has sustained any prejudice as a result of the juvenile court’s abuse determination.

[2] Indeed, in the juvenile court’s dispositional order, entered approximately two months after the adjudication order, Father’s primary responsibility is to “complete a domestic violence/mental health assessment . . . and follow any and all of the recommendations made.”

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Mintz v. Mintz – 2023 UT App 17

Mintz v. Mintz – 2023 UT App 17

THE UTAH COURT OF APPEALS

RAYNA ELIZABETH MINTZ,

Appellant and Cross-appellee,

v.

GLEN RYAN MINTZ,

Appellee and Cross-appellant.

Opinion

No. 20200507-CA

Filed February 9, 2023

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 174500034

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant and Cross-appellee

Thomas J. Burns and Aaron R. Harris, Attorneys for Appellee and Cross-appellant

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE DIANA HAGEN concurred.[1]

MORTENSEN, Judge:

¶1        After a lengthy marriage, Rayna and Glen Mintz[2] divorced and have since been involved in ongoing litigation regarding the distribution of marital property. Rayna and Glen now raise various issues for review, including questions about alimony, property distribution, and dissipation awards. In response to these appeals, we affirm in part, reverse in part, and remand to the district for further proceedings.

BACKGROUND[3]

¶2        Through more than twenty years of marriage, Rayna and Glen enjoyed a relatively luxurious lifestyle. During the marriage, in addition to meeting their regular expenses, Rayna and Glen invested money essentially as savings. Before 2014, they made deposits into investment accounts “when money was left over after normal marital spending,” and after 2014, they made direct deposits into investment accounts as part of Glen’s employment. Historically, they spent money freely, traveled frequently, and treated themselves to a variety of entertainment—often with other people. For Rayna’s part, she often invited friends to join her on different jaunts across the globe or visits to the theater. For Glen’s part, as is relevant to this appeal, he invested both time and substantial money into an extramarital affair.

¶3        Rayna and Glen financed this lifestyle through substantial income generated by Glen’s employment as an investment advisor managing the assets and investments of various clients. As a salaried employee for his employer (Employer), Glen “did not sell . . . a client list to [Employer]”; instead, he expanded the clients he serviced by creating relationships with other employees and assisting other employees in managing their clients’ assets. As part of Glen’s compensation, Employer offered cash awards distributed as forgivable loans. For each loan, Employer provided the cash to Glen up front and then forgave Glen’s payback obligation each year, leaving Glen with a decreased payback obligation but an increased tax obligation. The cash awards were deposited directly into Glen and Rayna’s investment accounts.

¶4        When Rayna discovered Glen’s infidelity, the couple sought a divorce. Ultimately, the district court made several determinations relevant to this appeal. First, although Rayna would be awarded alimony, a monthly amount for investment would be excluded from the calculation because she presented insufficient evidence to show that the parties’ investments were “standard practice during the marriage” or that they “helped form the couple’s standard of living.”

¶5        Second, although an amount for entertainment was included as a historical expense in alimony calculations, the court “divided by four” the amount Rayna had proposed because the entertainment amount was calculated based on a time “when two minor children also lived in the home.”

¶6        Third, although the list of clients Glen serviced could be considered an asset, Glen did not own a “book of business,” and accordingly, whatever value his client list contained could not be divided between the parties.

¶7        Fourth, although Glen had admitted to dissipating $75,000 on his extramarital affair and although the court determined that Rayna should be entitled to “half” that amount, in an appendix to the district court’s findings of fact and conclusions of law, designating the specific property distributions, the court provided no amount in the space for money awarded to Rayna because of Glen’s dissipation.

¶8        And fifth, although Rayna would receive what Glen argued was an investable property distribution, the court declined to include investment income in its alimony calculation because (1) the likelihood of a specific return was uncertain, (2) Rayna’s investment income should be left unencumbered as was Glen’s, and (3) the parties had traditionally reinvested investment income instead of living off it.

¶9        Following entry of the divorce decree, Rayna filed a motion to enforce, asserting that various investment accounts at issue in the divorce “were not divided immediately after trial and that they subsequently appreciated in value.” Accordingly, Rayna sought an order requiring Glen to transfer holdings “equivalent to her proportionate share of appreciation since trial.” However, before the hearing on that motion, Rayna filed a notice of appeal. At the hearing, the court determined that the enforcement order Rayna requested would require the court to not just enforce the order but to “read language into [the decree] and interpret [the decree] in a way that modifie[d] or amend[ed]” it. Because a notice of appeal had been filed in the case, the court determined it had been “divested of jurisdiction” to amend the decree and therefore could not provide the relief Rayna requested.

¶10      On these issues, Rayna and Glen both appeal.

ISSUES AND STANDARDS OF REVIEW

¶11      First, Rayna contends that the court abused its discretion through its award of alimony. Specifically, Rayna contends that (1) the court “misapplied Utah law” when it declined to award alimony consistent with historical investment and (2) the court entered unsupported findings of fact in reducing her entertainment expenses. “We review a district court’s alimony determination for an abuse of discretion and will not disturb its ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions.” Gardner v. Gardner, 2019 UT 61, ¶ 16, 452 P.3d 1134 (cleaned up). However, misapplication of the law is a de facto abuse of discretion, and an alimony award based on a misapprehension of the law will not be upheld. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145. Moreover, an alimony award based on clearly erroneous findings of fact will be overturned, see Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223, as will be an incorrect determination that evidence is insufficient to support an award, see Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733. “[U]nder our clearly erroneous standard, we will disturb a court’s factual findings only where the court’s conclusions do not logically follow from, or are not supported by, the evidence.” Gardner, 2019 UT 61, ¶ 32.

¶12      Second, Rayna contends that the district court erred when it determined that the list of clients Glen managed as an investment advisor (the book of business) was not a divisible marital asset. “Determining and assigning values to marital property is a matter for the trial court,” and an appellate court “will not disturb those determinations absent a showing of clear abuse of discretion.” Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987).

¶13 Third, Rayna contends that the district court failed to award or reimburse her half of the amount that Glen dissipated. “Where the trial court’s conclusions of law do not properly follow from the findings of fact, those conclusions can be overturned on appeal.” Cowley v. Porter, 2005 UT App 518, ¶ 46, 127 P.3d 1224.

¶14 Fourth, Rayna contends that the court erred in determining, based on the divorce decree’s language, that it lacked jurisdiction to grant Rayna appreciation on investment account awards. We review for correctness the district court’s interpretation of a divorce decree, Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65, and the district court’s “determination on jurisdictional issues,” National Advert. Co. v. Murray City Corp., 2006 UT App 75, ¶ 11, 131 P.3d 872 (cleaned up).

¶15      Fifth, on cross-appeal, Glen contends that the district court abused its discretion when it did not “determine an amount of income that Rayna [would] be able to earn from her awarded investment account assets and . . . apply that income to her ability to pay for her marital standard of living.” As indicated above, we review the district court’s alimony determination for abuse of discretion. See Gardner, 2019 UT 61, ¶ 16.

ANALYSIS
I. Alimony

A.        Investment

¶16 Rayna contends that the district court erred in excluding from the alimony award an amount reflective of historical investment. Specifically, Rayna argues that the court misunderstood the phrases “standard practice” and “marital standard of living” as these phrases have been employed in Utah caselaw concerning the appropriateness of alimony awards that include amounts for investment or savings. Rayna argues that the parties made deposits into investment accounts as a standard practice that contributed to their marital standard of living, and she asserts that she should have received a higher alimony award to be able to continue this practice and maintain her standard of living. On appeal, we conclude that the district court erred in its application of the law on this point.

¶17      In Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153, we indicated that “while the recipient spouse’s need to fund post-divorce savings, investment, or retirement accounts may not ordinarily be factored into an alimony determination, we cannot say that the ability to fund such post-divorce accounts may never be taken into account as part of” that analysis. Id. ¶ 16. Rather, “[t]he critical question is whether funds for post-divorce savings, investment, and 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.” Id. (emphasis added); see also Knowles v. Knowles, 2022 UT App 47, ¶ 57 n.8, 509 P.3d 265; Miner v. Miner, 2021 UT App 77, ¶ 58 n.8, 496 P.3d 242. Thus, the court should, as a legal matter, ensure it employs the correct legal definitions of standard practice and marital standard of living, apply the facts of a given case to those definitions, and then determine whether the facts as found meet the criteria for a savings-based alimony award.

¶18      First, the district court erred in concluding that Rayna and Glen’s undisputed course of conduct did not demonstrate a standard practice. See Bakanowski, 2003 UT App 357, ¶ 16; Kemp v. Kemp, 2001 UT App 157U, paras. 3–4, 2001 WL 522413. When the Bakanowski court provided the test for appropriate consideration of savings, investment, and retirement accounts in alimony calculations, it cited Kemp v. Kemp, in which the court reasoned that because “the parties had made regular savings deposits,” including savings in the alimony award could help “maintain the recipient spouse’s marital standard of living.” See 2001 UT App 157Uparas. 3–4 (emphasis added).

¶19 An event must certainly be recurring but need not be uniformly systematic to be considered “regular.” See id. at para. 3. Indeed, “something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Youth Tennis Found. v. Tax Comm’n, 554 P.2d 220, 223 (Utah 1976); see also Allen Distrib., Inc. v. Industrial Comm’n, 604 P.2d 938, 940 (Utah 1979) (reciting the then-enacted workers’ compensation laws that provided that “regularly” could include employment “continuous throughout the year or for only a portion of the year” (cleaned up)); Holt v. Industrial Comm’n, 87 P.2d 686, 689 (Utah 1939) (defining “regularly employed” to include “all employees who are employed and engaged in the usual or regular business of the employer, regardless of whether they were regularly or only casually or occasionally employed” (cleaned up)). Thus, even though an activity may “occur[] at intermittent times,” it can still be a regular activity. See Youth Tennis, 554 P.2d at 223 (cleaned up); see also B.L. Key, Inc. v. Utah State Tax Comm’n, 934 P.2d 1164, 1166 (Utah Ct. App. 1997). And although “regular” could also be understood to require methodic uniformity, see Valentine v. Farmers Ins. Exch., 2006 UT App 301, ¶ 11, 141 P.3d 618 (noting that “‘regular use’ connotes use that is consistent with a recurring pattern or uniform course of conduct or dealing” and that it “embodies use that is marked by a pattern of usage or some frequency of usage”); Youth Tennis, 554 P.2d at 223 (noting that “one of the meanings of the term ‘regular’ is: ‘Steady or uniform in course, practice or occurrence’” (quoting Black’s Law Dictionary 1450 (Rev. 4th Ed. 1968))), there exists no requirement that savings or investment deposits be made with uniform frequency.

¶20      Accordingly, even if savings deposits and investments do not occur on an exact timetable, such marital expenditures can be considered a standard practice, see Bakanowski, 2003 UT App 357, ¶ 16, in those infrequent and unusual circumstances where a party can produce sufficiently persuasive evidence that savings deposits and investments were a recurring marital action “whenever the opportunity ar[ose], though the actual time sequence may be sporadic.” See Youth Tennis, 554 P.2d at 223; see also Bakanowski, 2003 UT App 357, ¶ 16.

¶21 The district court found that Rayna did not present “sufficient evidence” to show that contributing to savings and investment accounts was the standard practice during the marriage. But on appeal, neither party appears to dispute that the district court was presented with evidence that before 2014 the parties invested substantial amounts of income at least yearly and that after 2014 a substantial portion of Glen’s income was deposited directly into investment accounts at least yearly. Accordingly, for nearly a decade immediately preceding the divorce, the parties set aside substantial money for investments at least annually. This undisputed evidence established that the parties followed a regular pattern, i.e., a “standard practice,” see Bakanowski, 2003 UT App 357, ¶ 16, of investing a portion of their annual income. In other words, given these undisputed facts, we conclude the district court applied too narrow a definition of standard practice in rejecting this evidence as insufficient.

¶22 Second, to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the “marital standard of living.” Id. “Standard of living is defined 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) (cleaned up) (emphasis added). In other words, in the alimony context, the marital standard of living is all that the parties enjoyed during the marriage—including luxuries and customary allocations—by virtue of their financial position. See id.see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153.

¶23 In Knowles v. Knowles, 2022 UT App 47, 509 P.3d 265, the trial court refused to include tithing expenditures as part of the alimony calculation because it was “not a necessary living expense.” Id. ¶ 57 (cleaned up). On appeal, we reversed that decision, explaining that it “ignored the requirement that [trial courts] assess the expense based on how the parties chose to spend and allocate their money while married.” Id. (emphasis added). “By failing to assess whether the parties’ expenditures were consistent with the marital standard of living, the court abused its discretion.” Id.

¶24 The marital standard of living analysis is not merely a question about what the parties spent their money on or whether they spent it at all. Rather, in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources). Something may contribute to the marital standard of living even though it may not result in a direct benefit or detriment to the marital estate’s net worth.

¶25      Like the trial court in Knowles, the district court here did not fully consider how the parties chose to “allocate” their income. See id. The parties’ choice to devote a substantial portion of income to investment and savings—much like the parties in Knowles chose to devote a substantial portion of their income to tithing, see id.—contributed to the parties’ marital standard of living. The court should consider this evidence in determining the amount of investment and savings expenditures to include in its alimony calculations. See id.see also, e.g.Lombardi v. Lombardi, 145 A.3d 709, 716 (N.J. Super. Ct. App. Div. 2016) (“An appropriate rate of savings can, and in the appropriate case should, be considered as a living expense when considering an award of maintenance.” (cleaned up)); Bryant v. Bryant, 534 S.E.2d 230, 232 (N.C. Ct. App. 2000) (“The trial court may also consider established patterns of contributing to savings as part of the parties’ standard of living.” (cleaned up)); In re Marriage of Stenzel, 908 N.W.2d 524, 536 (Iowa Ct. App. 2018) (“[R]etirement savings in a reasonable sum may be a part of the needs analysis in fixing spousal support.”).

¶26 Below, the district court declared that “Rayna ha[d] not convinced the court that [the couple’s] savings [practices] somehow helped form the couple’s standard of living.” The court continued, “There was no evidence that the deposits into the investment accounts were used to fund future purchases or otherwise contributed to the marital standard of living.” In making this ruling, the district court apparently relied on Kemp, where the court found that “during their marriage, the parties had made regular savings deposits to fund future major purchases, rather than making those purchases on credit.” 2001 UT App 157U, para. 3. Including saved money in the “marital standard of living,” however, does not require a party to spend it, as the parties did in Kemp. Our precedent does not exclude prudent saving from the definition of the marital standard of living. Indeed, it would be a perverse state of the law if we, as a rule, always included in an alimony calculation all sums parties spent, even imprudently, but excluded sums wisely saved.

¶27      The parties presented evidence (and on appeal the parties continue to agree) that the investments were meant to facilitate future financial growth; that during the economic recession in 2008, the parties dipped into their investments to maintain their standard of living; and that they later used investments to pay tax obligations incurred because of Glen’s compensation structure. The very fact that such a substantial amount of Glen’s income went straight to investment that then served to pay off a tax obligation represents the type of allocation that constituted part of the marital standard of living. An understanding of the marital standard of living that is restricted to direct and immediate expenses is simply too limited. Instead, the use of marital funds to cover the parties’ investments and savings—provided it was standard practice during the marriage—is a proper consideration in determining the marital standard of living. See Bakanowski, 2003 UT App 357, ¶ 16.

¶28 In sum, the district court erred in concluding that insufficient evidence supported Rayna’s request to include amounts for investment in alimony calculations. The undisputed evidence established that it was both a standard practice to invest marital assets annually and that this pattern of investment contributed to the marital standard of living. We remand the case to the district court to recalculate alimony based on the amount that the couple’s historical investment contributed to the marital standard of living. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (“We will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” (cleaned up)).

B.         Entertainment

¶29 Rayna also contends that the district court “entered a factual finding that was unsupported by the evidence regarding [her] entertainment expenses.” This is so, she argues, because testimony at trial established that the amount she originally requested for entertainment as part of her living expenses was “carved out . . . for her alone” and because the evidence, including the exhibit used to calculate her living expenses, did not otherwise suggest that the amount should have been reduced as it was by the district court. We agree that the district court’s reduction of Rayna’s entertainment expenses was based on clearly erroneous findings of fact because “the court’s conclusions do not logically follow from” and are not supported by “the evidence.” See Gardner v. Gardner, 2019 UT 61, ¶ 32, 452 P.3d 1134.

¶30      In determining the amount for entertainment expenses to include in its alimony calculation, the district court stated that the amount “presents expenses calculated for . . . years . . . when two minor children also lived in the home. Therefore, this amount should have been divided by four.” The district court reduced the amount it considered in its alimony calculation related to entertainment accordingly. However, this does not follow from the evidence presented at trial.

¶31      As an initial matter, when asked about the entertainment line item, Rayna testified that she loved “to go to concerts,” that she went “to New York City to the ballet [and] to the theater,” and that she generally hosted a friend on those trips. And testimony from Rayna’s expert on the matter explained that the amount was for “entertainment that she would normally spend on a monthly basis” and, specifically, that the amount was “what she actually spent if . . . carved out [for] her alone.” (Emphasis added.)

¶32      Glen attempts to provide support for the district court’s apparently contrary finding by suggesting that several line items on Rayna’s living-expense exhibit included a note that the amount was for “Rayna Only,” and that based on this notation, the district court “acted within its appropriate discretion” when it determined the amount requested for entertainment should be reduced because that line item did not include that note. However, in our review of the exhibit referred to by Glen, of the thirty-nine line items listed, only three specify that the amount was for “Rayna Only.” Yet some of the unmarked items reflect amounts the parties agree were spent on Rayna alone. Therefore, the absence of the “Rayna Only” notation does not necessarily reflect that those items were not for “Rayna Only.” And further, a line item for “Money Spent on Kids” specifically notes that it includes “Entertainment” expenses for those children. If Rayna’s entertainment expenses included money spent on the children, there would be no need to include a separate line item for entertainment under “Money Spent on Kids.” Moreover, we note that the district court’s determination that the amount should be “divided by four” because “two minor children also lived in the home” does not quite add up. Rayna and two children add up to three, and whether the court also included Glen or the friends Rayna often hosted is unclear from the court’s findings of fact. Either way, the justification does not appear to support the reduction.

¶33      Accordingly, the district court’s reduction of the alimony amount requested for entertainment contradicts not only the direct testimony at trial but also the very exhibit on which the court expressly based its findings. Because the court’s conclusions do not logically follow from and are not supported by the evidence, we determine that this portion of the award is based on clearly erroneous findings of fact, and we therefore remand to the district court for clarification and correction of the matter. See Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Gardner, 2019 UT 61, ¶ 32.

II. Book of Business

¶34      Rayna next opposes the district court’s determination that the book of business “was not a divisible marital asset.” However, to prevail on such a contention, Rayna would need to show that the court clearly abused its discretion, see Talley v. Talley, 739 P.2d 83, 84 (Utah Ct. App. 1987), something she has not done here.

¶35      In dealing with Rayna’s argument that Glen owned a book of business that should be a divisible marital asset, the district court first explained that the alleged book of business, comprising “a client list and the assets under management from these clients,” constituted an “asset” as a legal matter —a determination neither party appears to challenge on appeal. But the court did not stop there, determining next that this “asset” was owned not by Glen but by Employer.

¶36 The court explained its reasoning in over five pages of detailed findings of fact and conclusions of law. Throughout those pages, the district court explained, among other things, that although Glen had extensive experience in his field and a portion of his compensation required him to meet lofty expectations concerning the funds he managed, “[w]hen Glen began work for [Employer], he did not sell a book of business or a client list to [Employer]”; “[n]owhere within [the relevant employment documents] did [Employer] indicate that it was purchasing any client list from Glen or that Glen was selling anything at all to [Employer]”; and “Rayna ha[d] not presented any evidence that Glen sold any client list, client information, or other asset to [Employer] as a condition of his hiring.” Further, Glen “worked as an employee of [Employer]”; “ha[d] been paid a salary . . . as a W-2 employee”; and “expand[ed] the client list” by, in part, “creat[ing] relationships with other . . . employees who advise individuals that they service to place assets under Glen’s management.” The court then noted that often “Glen manages assets owned by numerous individuals and entities with whom he has no personal relationship.”

¶37 The court then described various agreements concerning Glen’s compensation and employment and highlighted portions of those agreements. One read,

All information concerning [c]lients of [Employer], former clients of [Employer], and prospective clients of [Employer] must be treated as confidential and must not be disclosed to anyone outside of [Employer.] . . . [I]n the event Employee’s employment is terminated for any reason whatsoever[,] Employee may not take any records or information referring or relating to [c]lients of [Employer], former clients of [Employer] and prospective clients of [Employer], whether originals or copies, in hard copy or computerized form.

Another read,

Employee may not directly or indirectly use, maintain, take or disclose any Confidential Information, except . . . in the course of carrying out Employee’s duties for [Employer] during Employee’s employment[.] . . . “Confidential Information” . . . includes . . . client relationships and prospective client relationships, client lists and contact information, client information (including but not limited to clients’ past and present financial conditions, investment practices, preferences, activities, objectives, and plans and other client data Employee obtained while in [Employer’s] employ)[.] . . . Employee further expressly agrees that, in the event his or her employment terminates, Employee’s use of Confidential Information, including but not limited to any information referring or relating to clients of [Employer], former clients of [Employer] and prospective clients of [Employer], must immediately cease and that Employee must immediately return, destroy or delete, any Confidential Information whether in hard copy or computerized form, including in any electronic device owned by Employee.

The court then reasoned, “[i]f the clients were clients, relationships, or contracts that Glen owned, he would not be subject to any restrictions with respect to the manner in which he stored, maintained, or utilized any of the client information, either during or after his employment with [Employer]. Similarly, if the client information was owned by Glen, he would not be subject to any restrictions.” Significantly, the court noted that “individuals and entities that own the assets under management have no contractual obligation to continue to use Glen to manage their assets; they are free to select a different . . . adviser [of Employer] at any time.” These individuals had “not contracted with Glen” but instead had “contracted with” Employer. And finally, the court reasoned that “[t]he terms Glen was offered by [Employer] were not negotiated. He did not negotiate higher pay or different terms but simply accepted employment on the terms offered by [Employer]. If Glen owned the book of business[,] he would have been in a position of greater leverage and been able to negotiate with [Employer].” In short, the district court determined that because Glen’s interactions with the book of business did not demonstrate ownership, “Glen [did] not own the book of business.”

¶38 Rayna attacks this determination primarily based on the alleged existence of alternative evidence. First, she asserts that evidence that Glen had some control over the book of business and its fruits and that the book of business included the information of some clients he had obtained before joining Employer demonstrated that Glen owned the book of business. But regardless of whether such evidence was before the district court, it would not contradict the findings the court did make— findings on which it relied to determine that, on the whole, Glen did not own the book of business. And although Rayna contends that “the evidence showed that [Employer] hopes to buy Glen’s book of business when he retires or transitions out of the industry and would facilitate the transfer of all of his clients to another advisor within [Employer],” this argument fails to acknowledge that the district court specifically considered this evidence in its findings of fact and ultimately found that the evidence did not deserve “any weight” because of a “lack of any testimony or other evidence by anyone who actually knew anything about” such a buy-out program. Indeed, “if there is evidence supporting a finding, absent a legal problem—a fatal flaw—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings.” See Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 28 n.4, 505 P.3d 1136 (cleaned up). And here Rayna has not demonstrated that such a flaw exists.

¶39      Because none of Rayna’s arguments on appeal show that the court clearly abused its discretion in its thorough and record-supported explanation of why Glen did not own the book of business, her contention on appeal is unavailing and we affirm the district court’s determination.

III. Dissipation

¶40 Rayna also contends that the district court erred when it included in the final distribution only half of the amount it determined Glen dissipated and failed to award Rayna any of it. Indeed, the district court found that “the amount of dissipation attributable to [Glen’s affair] is $75,000” and that “[t]hese funds were marital funds, for which Glen was entitled to half and Rayna to half.” But in the next line, the court, in seeming contradiction, stated, “Through dissipation, Glen spent half of $37,500 which Rayna was entitled to and therefore should be added to Glen’s [distribution] column.”

¶41 On appeal, the parties agree that Rayna is owed $37,500 due to Glen’s dissipation of $75,000. But the parties do not agree about the meaning of the court’s order or its associated appendix distributing the marital property. Having viewed both the court’s order, as recited above, and the appendix that purports to effectuate that order, we remand this issue to the district court for clarification.

¶42 Because the parties agree that the full amount of dissipation is $75,000 and that Rayna is thus entitled to $37,500, the only matter for us on appeal is to ensure that the order of the district court reflects that agreement. And it does not appear to do so. The court’s appendix lists three columns: one for the value of a given property item, one for Rayna’s portion of the property, and one for Glen’s portion of the property. In Rayna’s and Glen’s respective columns, a number was entered without parentheses to indicate a positive sum owed to the party, and a number was entered inside parentheses to indicate a sum to be subtracted from the ultimate distribution. For the line-item entry for dissipation, instead of $75,000, the value was listed as only $37,500. More important for our present purposes, Rayna’s column for that line item is empty whereas Glen’s contains $37,500 without parentheses, indicating a positive sum. As we read this entry, it appears that the incorrect dissipation amount was entered into the value, and instead of Rayna being awarded half of that $75,000, the amount of $37,500 was given to Glen. This was error.

¶43      On remand, the district court should correct this error and the associated appendix to indicate without ambiguity that the full amount of dissipation is $75,000 and that Rayna will be awarded $37,500 as her share of that total.[4]

IV. Property Distribution Appreciation

¶44 Rayna lastly contends that the district court “abused its discretion when it refused to award [her] a proportional share of the appreciation that accrued on the marital investment accounts” as she requested in her motion to enforce. She asserts that the court mischaracterized her motion to enforce as a motion to amend and that it accordingly erred in determining that it lacked jurisdiction to provide the relief she requested. On appeal, Rayna appears to maintain that her motion below was nothing more than a motion to enforce the decree; that the court had jurisdiction to enforce its decree; and that in determining that the order she requested would require an amendment (as opposed to mere enforcement), the court inherently “determined the decree did not already offer Rayna a proportional amount of the appreciation.” We agree with the district court that the relief Rayna sought would have required an amendment to the decree and that the court did not have jurisdiction to amend that decree once the notice of appeal had been filed.

¶45      We note that a “trial court is [generally] divested of jurisdiction upon the filing of an appeal.” Ortiz v. Crowther, 2017 UT App 133, ¶ 2, 402 P.3d 34 (per curiam). But a court may still enforce its decree even if an appeal has already been sought.[5] See Cheves v. Williams, 1999 UT 86, ¶ 48, 993 P.2d 191. Accordingly, because “Rayna filed a motion to enforce the decree,” she asserts that the court should have reached the merits of the issue she presented to it. But “[t]he substance of a motion, not its caption, is controlling.” DeBry v. Fidelity Nat’l Title Ins. Co., 828 P.2d 520, 523 (Utah Ct. App. 1992). And here, although Rayna titled her motion as one “to enforce,” the requested relief does not match that title. Cf. CBS Enters. LLC v. Sorenson, 2018 UT App 2, ¶¶ 11–12, 414 P.3d 925.

¶46      The decree instructed Glen “to ‘transfer’ equities valued at the exact amounts set forth.” (Emphasis added.) But in her motion, Rayna requested not only those exact amounts but also “post-trial appreciation over and above the exact figures set forth.” On appeal, Rayna concedes that “the decree said nothing about who should receive the appreciation that accrued” post-trial. Accordingly, we agree with the district court that to award the relief that Rayna sought would require the district court to “read language into” the decree “in a way that modifie[d] or amend[ed]” it. See Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (“We interpret a divorce decree according to established rules of contract interpretation.” (cleaned up)); see also 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 . . . .” (cleaned up)).

¶47      Because Rayna filed her notice of appeal before the district court ruled on her request for post-trial appreciation of the investment distribution, the district court had been divested of jurisdiction to alter the divorce decree in the way Rayna requested. See Ortiz, 2017 UT App 133, ¶ 2. Accordingly, we affirm the district court’s determination.

V. Investment Income

¶48      On cross-appeal, Glen contends that the district court abused its discretion when it did not include in its alimony calculation an amount reflecting Rayna’s ability to earn income from awarded investment accounts and apply that amount toward Rayna’s unmet needs.[6] Initially, Glen asserts that the district court “fail[ed] to consider Rayna’s ability to earn” income from these sources, but in the remainder of his argument, he proceeds to explain why the court’s actual consideration of her ability to earn income from investment accounts is based on unsupported findings or is otherwise unjustified.

¶49 For its part, the district court acknowledged Glen’s argument that Rayna would receive an investable property distribution that could provide “at least” a six percent return. While Utah “caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received”—instead district courts have “broad discretion to treat sources of income as the court sees fit under the circumstances.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. The court then provided three justifications for its determination that “it would be inequitable to include interest, dividend or other unearned income potentially generated from investment assets received in the marital property award.”

¶50      First, the court explained that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on.” It noted the inconsistency of historical returns, Rayna’s discretion to use her distribution for purposes other than investment, and the difficulty of projecting future investment income. Second, the court explained that “[i]t would be inequitable for Glen to be able to keep his share of the investments and retain their income stream to reinvest as he continues to generate professional income, while Rayna would retain only the investments after being compelled to expend her investment income to pay her living expenses.” The court felt that such an order would “wrongly deprive[] Rayna of the full benefit and value of” her distribution and that she should be able to “grow” any investments she would make without the obligation to use that money for providing for her own standard of living. Third, the district court explained that “[i]t was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income.” Accordingly, the court refrained from applying any amount of potential investment income toward Rayna’s projected earning capacity.

¶51      In determining whether a spouse should receive alimony, the general rule is that a court should first take care of property distribution. See Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827 (“[An alimony] evaluation properly takes into account the result of the property division, particularly any income-generating property [the receiving spouse] is awarded, but alimony is not meant to offset an uneven property award. Rather, as a matter of routine, an equitable property division must be accomplished prior to undertaking the alimony determination.”). Then, depending on how the property distribution works out— especially considering income-generating property—the court considers whether alimony will be necessary for a spouse to meet demonstrated needs. See Burt v. Burt, 799 P.2d 1166, 1170 (Utah Ct. App. 1990) (“Alimony is appropriate to enable the receiving spouse to maintain as nearly as possible the standard of living enjoyed during the marriage and to prevent the spouse from becoming a public charge.” (cleaned up)); see also Batty, 2006 UT App 506, ¶ 4 (“In determining alimony, the trial court must consider three important factors: (1) the financial condition and needs of the spouse claiming support, (2) the ability of that spouse to provide sufficient income for him or herself, and (3) the ability of the responding spouse to provide the support. Although a trial court is given considerable discretion in determining an alimony award, failure to consider these factors constitutes an abuse of discretion.” (cleaned up)). And as we held in Eberhard v. Eberhard, 2019 UT App 114, 449 P.3d 202, while the district court must consider all potential sources of income, it is not required to count those sources of income. Id. ¶ 21. This is nothing more than an expression of the rule that a district court has “broad discretion to treat sources of income as the court sees fit under the circumstances.” Id.

¶52      Here, contrary to Glen’s assertion, the district court did, in fact, consider Rayna’s ability to earn income from her distributed investment assets in reaching its determination that she would still require additional alimony to support herself to the level of the marital standard of living. See Dobson v. Dobson, 2012 UT App 373, ¶ 21, 294 P.3d 591 (stating that for the purposes of determining alimony, “the needs of the spouses are assessed in light of the standard of living they had during marriage” (cleaned up)). Given that the district court considered Rayna’s ability to earn income in reaching its determination that she was entitled to alimony, the question before us is whether the circumstances allowed the district court to refrain from counting any future investment income Rayna may receive in its calculation. None of Glen’s arguments attacking the court’s determination persuade us that the court exceeded its discretion here.

¶53 First, Glen argues that the court’s determination that the “ability to obtain a 6% return is not sufficiently certain for the court to rely on” contradicts its other findings. Specifically, he cites a finding that states “Glen’s income has consistently increased” and “[o]ther than general economic uncertainty, there was no evidence at trial that this trend would not continue.” He then claims that this statement contradicts the court’s determination that Rayna would not obtain a return on her investments.

¶54 However, the two findings are not comparable at their roots. Regarding Rayna’s potential income, the court was specifically discussing income resulting from a return on investments; but regarding Glen’s income, the court was noting an increase in his income as a whole, including that income derived from gainful employment and not exclusively income derived from any returns on Glen’s ongoing investments. A projection that Glen’s income as a whole, salary and all, will continue to increase is not incompatible with a determination that a return on investment income is insufficiently certain to rely on.

¶55 As part of this argument, Glen also characterizes an unrelated finding from the court’s ruling as a determination that Rayna’s relevant accounts were “not easily liquidated” and asserts that the court’s statement that Rayna may choose to liquidate a portion of these investments contradicts that finding. But this description of the court’s finding is simply inaccurate— the court noted that the “accounts [were] not liquid,” and it made no statement about whether there would be difficulty in liquidating them. And even if the accounts were difficult to liquidate, it would, again, not be incongruous with the court’s other findings, specifically that Rayna could choose to liquidate, any difficulty notwithstanding.

¶56 Further, Glen asserts that the court unjustifiably determined that both parties should “grow” their investments but that growth on Rayna’s accounts was uncertain. Again, these findings are not incongruous—the district court could reasonably find that a return was uncertain, that requiring Rayna to use any return to provide for her needs would prevent her from increasing the amount invested, and that Rayna deserved the opportunity to have her investment returns be reinvested for potential future growth.

¶57      Second, Glen asserts that the court gave Rayna freedom to reinvest her investment returns while it restricted Glen to using his investment returns to pay for both the taxes owed on his forgiven loans and Rayna’s alimony award. As to the alimony award, we note that Glen has not directed us to anywhere in the record where the district court explained that he must pay for Rayna’s alimony using investment income, and as such, Glen is free to provide for Rayna’s alimony using whatever resources he desires, whether it be his salary, proceeds from a mortgage or other loan, or, indeed, his investment income.

¶58      Third, Glen asserts that the court’s finding that “Lilt was the parties’ regular practice not to spend or live off investment income, but rather to entirely reinvest that income” contradicts its acknowledgment that Glen incurred a tax obligation from the forgiven loans. However, we note that although Glen maintains on appeal that he used the forgivable-loan investment returns to pay tax obligations, Glen has not pointed to the court ever making a finding to that effect, and thus the findings are not inconsistent. Further, although such evidence was before the court, the court also stated that “Glen did not include his own investment income in his Financial Declaration as income available to pay alimony or to otherwise meet his own need.” That fact, the court stated, “demonstrate[d] that neither party considered investment income as income to be spent or expended, but rather as a vehicle to increase savings and net worth.” While a pattern of using investment returns to pay tax obligations may not be completely compatible with a pattern of using returns to “increase savings and net worth,” we do not view this apparent inconsistency as enough to persuade us that the court abused its discretion.

¶59      In sum, Glen has not demonstrated that the court abused its discretion in refusing to count Rayna’s potential investment returns as income toward her ability to meet her living expenses. Accordingly, we affirm the district court on this point.

CONCLUSION

¶60      First, we remand to the district court to apply the correct standard to the evidence regarding investments and savings and to adjust the alimony award based on calculations that account for Rayna’s historical spending on future investments; we also remand to the district court to adjust the alimony award based on calculations that account for Rayna’s historical spending on entertainment. Second, we affirm the district court’s determination that Glen did not own the book of business. Third, we remand to the district court to ensure that Rayna is awarded the $37,500 owed to her due to Glen’s dissipation. Fourth, we affirm the district court’s determination that the relief Rayna requested in her motion to enforce would have required it to amend the decree and that it lacked jurisdiction to do so. And fifth, we affirm the district court’s decision not to include potential investment income in calculating Rayna’s actual income. On remand, we instruct the district court to engage in further proceedings as necessary to effectuate the holdings provided in this opinion.

 

[1] Justice Diana Hagen began her work on this case as a judge of the Utah Court of Appeals. She became a member of the Utah Supreme Court thereafter and completed her work on the case sitting by special assignment as authorized by law. See generally Utah R. Jud. Admin. 3‑108(4).

[2] Due to the parties’ shared surname, we employ their given names.

[3] The parties are appealing an order from a bench trial. “We view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard. However, we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d 200 (cleaned up).

[4] The district court’s view, which we endorse, is that Glen spent $75,000 in marital funds on his affair—not a proper marital purpose. Half of that amount was essentially his, but the half belonging to Rayna should properly be restored to her by Glen.

[5] Notwithstanding this general rule, the lower court may, in addition to dealing with motions to enforce the decree address clerical errors and other mistakes “arising from oversight or omission” that the appellate court asks it to address even after an appeal has been filed. See Utah R. Civ. P. 60(a); see also Cheves v. Williams, 1999 UT 86, ¶ 45, 993 P.2d 191 (“We have also recognized exceptions to [the general] rule, in the interest of preventing unnecessary delay, where any action by the trial court is not likely to modify a party’s rights with respect to the issues raised on appeal, or where the action by the trial court is authorized by rule or statute.” (cleaned up)).

[6] Although the district court did not impute income to Rayna based on investment earnings, it did impute to her some income based on an undisputed amount of earning capacity.

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Myers v. Myers 2023 UT App 20 – Alimony Modification

Myers v. Myers 2023 UT App 20

2023 UT App 20

THE UTAH COURT OF APPEALS

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 alsoe.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.

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Wellman v. Kawasaki – 2023 UT App 11 – Alimony

2023 UT App 11

THE UTAH COURT OF APPEALS

DAVID WELLMAN, Appellee, v. KRISTIN KAWASAKI, Appellant.

Opinion

No. 20210265-CA

Filed February 2, 2023

Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 174402919

Mary Deiss Brown, Attorney for Appellant

Eric M. Swinyard and Keith L. Johnson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.

HARRIS, Judge:

¶1 Kristin Kawasaki appeals various aspects of a comprehensive set of rulings issued following a two-day divorce trial and post-trial proceedings; her chief complaint relates to the trial court’s decision not to award her alimony. For the reasons discussed below, we affirm the court’s orders.

BACKGROUND

¶2        David Wellman and Kristin Kawasaki married in 1999 and have three children together, two of whom were minors at the time of trial. For most of their marriage, Kawasaki did not work outside the home but instead cared for the children full-time. By the time of trial, however, Kawasaki was working full-time as a receptionist, earning $3,667 per month; Wellman, an engineer, was earning $10,833 monthly.

¶3        In November 2017, Wellman filed for divorce. Some months later, the trial court entered temporary orders, based partially on stipulation, that made Kawasaki the primary physical custodian of the minor children, and that required Wellman to pay both $2,182 per month in child support as well as, in lieu of alimony, the mortgage payment on the marital house (in the amount of $2,836 per month). Additionally, the court awarded “the temporary exclusive use and possession of” the parties’ marital house to Kawasaki.

¶4        In the three years between their separation and their eventual divorce trial, the parties’ finances and daily lives remained enmeshed due to Wellman’s changing employment and living situation. Despite the fact that Kawasaki had been awarded exclusive use of the marital house in the temporary orders, Wellman lived in the basement of the house off and on in the years leading up to trial. Wellman paid the mortgage in many of the months, but missed those payments in others, and had stopped making those payments altogether by the time of trial. And despite being ordered to make child support payments, Wellman never made a single such payment to Kawasaki prior to trial, opting instead to pay many of her bills directly or to buy groceries for the household while he was living in the marital house.

¶5        Eventually, the case proceeded to a bench trial, which was held—virtually, through a videoconference platform—over two days in late November and early December 2020. During the trial, the court heard testimony from Wellman and Kawasaki as well as several other witnesses. At the trial’s outset, before testimony began, Wellman’s counsel alerted the court that Kawasaki had failed to timely produce any financial documents (e.g., bank or credit card statements, copies of bills) to support her claim for alimony, despite the fact that the court had ordered both parties to turn over to the other side a year’s worth of bank statements prior to trial. In addition, while Kawasaki had submitted a financial declaration in 2017, at the outset of the litigation, for use during the temporary orders hearing, she had never updated that declaration. Wellman’s counsel asserted that, under applicable law, Kawasaki’s failure to provide documentation to support her alimony claim “operates as an effective bar to [Kawasaki’s] request for alimony.” Kawasaki’s counsel attempted to remedy the situation by offering to have Kawasaki read a printout of her most current (yet undisclosed) bank statement into the record, but the court refused to allow that, explaining that it would not be “appropriate” for Kawasaki to use evidence at trial that had not been timely disclosed. But the court did not view Kawasaki’s failure to produce an updated financial declaration or supporting financial documents as a complete bar to her alimony claim; indeed, the court stated that the parties “can address alimony with documents that are already in the record,” and later allowed both parties to offer testimony regarding certain aspects of Kawasaki’s alimony claim.

¶6        During her trial testimony, Kawasaki provided few concrete financial details; in particular, she made no attempt to tie her testimony to any previously filed financial declaration, and she did not submit any such declaration for the court’s consideration at trial. The only specific dollar amounts Kawasaki testified about were the amounts Wellman was ordered to pay in connection with the temporary orders and the wage she earned when she later obtained employment. She testified that, at the time of trial, her net income each month was $2,800 but that, due to expenses, “most months [she goes] into the negative” and has to rely on her “overdraft.” However, she offered no concrete expense numbers to substantiate this assertion. She offered her belief that an apartment in her area suitable for her and the children would cost “about $2,000,” but did not know what the other expenses associated with such an apartment would be.

¶7        At one point, Kawasaki’s counsel even acknowledged that she was “having trouble establishing [her] client’s needs . . . because of disclosure problems,” but asserted that “there are ways of establishing [Kawasaki’s] needs by establishing [Wellman’s] needs.” To this end, counsel attempted to draw on figures Wellman had put together before trial and to press him on how much is “enough for a single person to live with three children.” But counsel did not question Wellman about the line-item expenses on his financial declarations, and did not submit any of those declarations for the court’s consideration. Wellman did admit, however, in response to a general question about how much it would “cost to live with three kids,” that “$1,000 to $1,500 [monthly] for daily activities and food” was not “unreasonable.”

¶8        After considering all of the evidence presented, and after taking into account the closing arguments from the attorneys, the court took the matter under advisement, and later issued a written ruling. In that ruling, the court awarded Kawasaki sole physical custody of the minor children, allowing Wellman parent-time pursuant to Utah Code section 30-3-35. The court ordered Wellman to pay Kawasaki $1,578 per month in child support, calculated by using the sole custody worksheet and assessing Wellman’s monthly gross income at $10,833 and Kawasaki’s at $3,667. The court also ordered Wellman to pay Kawasaki $76,370 in child support arrears, in light of the fact that Wellman had not made any direct child support payments pursuant to the temporary order. The court awarded title of the marital house to Wellman, but ordered that the equity in the house be divided equally within one year, either through a sale or a refinance. With regard to all other marital debts, including debt from a loan taken out during the marriage on a Thunderbird vehicle the parties had purchased during the marriage, the court ordered that the parties “be equally responsible for” them.

¶9        With regard to alimony, however, the court declined Kawasaki’s request in its entirety. The court noted that the party requesting alimony bears the burden to establish entitlement to it, including the burden of establishing that party’s financial need. The court found that Kawasaki “did not present any bank statements whatsoever, nor did she submit a financial declaration or any documentary evidence regarding her income, expenses, or debts.” And the court found that Kawasaki’s testimony about her financial need “was inconsistent and missing critical information” and was not enough, in the absence of any documentary evidence, to “persuade the Court that alimony should continue.”

¶10      After the ruling, Kawasaki filed a post-trial motion, chiefly to ask the court to order either (a) that the marital house be sold right away rather than within one year, or (b) that Kawasaki be allowed possession of it until the sale or refinance. Among other requests, Kawasaki also asked the court to amend its order so that she would not have to share in paying off the debt relating to the Thunderbird, asserting that Wellman had gifted the car to her and then later destroyed it. But Kawasaki did not ask the court to amend its alimony ruling. Following a hearing on the motion, the court reiterated that Kawasaki was liable for her share of the Thunderbird debt because “the debt was attributable to the parties’ IRS debt,” which was a joint debt, and the court declined Kawasaki’s request to materially amend its order regarding the marital house.

ISSUE AND STANDARD OF REVIEW

¶11 Kawasaki now appeals, and asks us to review the trial court’s decision not to award her any alimony.[1] “We review a court’s alimony determination for an abuse of discretion,” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (quotation simplified), and “as long as the court exercises its discretion within the bounds and under the standards our supreme court has set and so long as the trial court has supported its decision with adequate findings and conclusions,” we “will not disturb its ruling on alimony,” Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (quotation simplified).

ANALYSIS

¶12      “Under Utah law, the primary purposes of alimony 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, 2021 UT App 77, ¶ 14 (quotation simplified). “The core function of alimony is therefore economic,” and “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (quotation simplified).

¶13 In evaluating a party’s alimony claim, “courts must consider the statutory alimony factors,” which include “the financial condition and needs of the recipient spouse, the recipient’s earning capacity, and the ability of the payor spouse to provide support.” Fox, 2022 UT App 88, ¶ 20 (quotation simplified). These three factors are often called the “Jones factors” because they date back to Jones v. Jones, 700 P.2d 1072 (Utah 1985); they have since been codified in Utah Code section 30-3-5(10)(a)(i)–(iii), and they remain the first three factors of a “multi-factor inquiry” that governs a court’s alimony determination. See Miner, 2021 UT App 77, ¶ 16.

¶14 “A party seeking alimony bears the burden of demonstrating to the court that the Jones factors support an award of alimony.” Dahl v. Dahl, 2015 UT 79, ¶ 95, 459 P.3d 276. The most common way for a party to satisfy this burden is for the party to “provide the court with a credible financial declaration and [supporting] financial documentation to demonstrate that the Jones factors support an award of alimony.” Id. ¶ 96. And in most cases, that is what the parties do; indeed, our current rules of civil procedure require parties in domestic cases to turn over to the other side, at the outset of the case, “a fully completed Financial Declaration, using the court-approved form,” along with “attachments,” including recent bank statements and tax returns as well as “copies of statements verifying the amounts listed on the Financial Declaration.” See Utah R. Civ. P. 26.1(c). The court-approved form includes a table where parties are expected to set forth, in line-item fashion, their monthly expenses. See Financial Declaration, Utah State Courts, 6-7, https://legacy.utcourts.gov/ho wto/family/financial_declaration/ docs/1352FA_Financial_Declar ation.pdf [https://perma.cc/K77G-Y99V]. And these disclosures, like other required disclosures, must be timely supplemented in the event things materially change. See Utah R. Civ. P. 26(d)(5). At trial, parties seeking alimony often use the line-item expense categories listed in their financial declarations as a template for the “needs” portion of their alimony request, offering testimony about the items in the declaration and seeking admission into evidence of the applicable documents (bank statements, credit card statements, tax returns, etc.) that support the various expense categories. See, e.g.Miner, 2021 UT App 77, ¶¶ 20–63 (analyzing separate challenges to eleven of the forty-five expense line items in a trial court’s alimony award).

¶15      In this case, however, Kawasaki did not follow this course of action. She did submit a financial declaration in 2017, at the outset of the case, and it was used in connection with the temporary orders hearing. But she did not ever supplement that declaration in advance of the trial held some three years later; she did not testify about that declaration at trial; she failed to produce—even after the court ordered her to do so—any financial documentation supporting her alleged expenses; and she failed to gain admission of either her declaration or any specific financial documentation into evidence at trial.[2]

¶16 Litigants who bring alimony claims but fail to support them with the usual documentation put trial courts in a very difficult spot. On the one hand, trial courts are trained to be sensitive to the potential unfairness of a litigant—in particular one who has spent years, perhaps even decades, out of the workforce while raising children—being left without sufficient support, especially where that litigant’s spouse is able to live comfortably. Indeed, alimony is supposed to allow the recipient spouse to enjoy, as much as possible, the marital standard of living, and is designed “to prevent the recipient spouse from becoming a public charge.” Id. ¶ 14 (quotation simplified). In this context, as is often the case in family law, trial courts have wide discretion to fashion remedies that fit the situation faced by the family at issue. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 41, 402 P.3d 219 (“Trial courts have considerable discretion in determining alimony and determinations of alimony will be upheld on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” (quotation simplified)).

¶17      In particular, trial courts are vested with discretion to “impute figures” for a recipient spouse’s needs analysis, even where complete documentation is lacking, as long as there is sufficient evidence to support such imputation. See Dahl, 2015 UT 79, ¶ 116 (stating that courts “may impute figures” (emphasis added)). In cases where an alimony claimant fails to provide sufficient documentation, courts may find adequate support for the imputation of particular expenses in, for instance, the opposing party’s documentation, see id. (stating that “the district court could have . . . imputed a figure to determine [the recipient spouse’s] financial need based . . . on . . . [the opposing party’s] records of the parties’ predivorce expenses”), or in updated financial declarations supported not by timely disclosed financial documents but instead by the sworn testimony of witnesses, see Munoz-Madrid v. Carlos-Moran, 2018 UT App 95, ¶ 10, 427 P.3d 420 (upholding a trial court’s imputation of some of a recipient spouse’s expense items, despite the spouse’s “fail[ure] to provide supporting documentation with her financial declaration,” because the spouse had provided an updated financial declaration and another witness had offered specific testimony at trial about the spouse’s rent and utilities expenses that was “consistent with [the] financial declaration”).

¶18      But on the other hand, trial courts’ discretion in this arena is not unlimited, and courts that go too far in trying to help litigants who haven’t sufficiently supported their alimony claims risk abusing their discretion. Courts that make alimony awards “must support [those] determinations with adequate findings,” see Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153, including specific findings regarding a recipient spouse’s reasonable monthly needs. Where trial courts attempt to make alimony awards in the absence of specific findings, supported by evidence in the record, regarding a recipient spouse’s actual needs, those courts have often been reversed. See, e.g.Eberhard v. Eberhard, 2019 UT App 114, ¶¶ 36–40, 449 P.3d 202 (reversing as inadequately supported a trial court’s alimony award that, on its face, exceeded the recipient spouse’s monthly needs but was apparently designed to vaguely bring her more into line with “the marital standard of living,” and stating that “[w]ithout the district court more precisely spelling out the amount that [the recipient spouse] realistically requires . . . to enjoy the marital standard of living, we are unable to discern whether the alimony award, in fact, exceeds her needs”); Bakanowski v. Bakanowski, 2003 UT App 357, ¶¶ 11– 13, 80 P.3d 153 (reversing where “the trial court engaged in an effort to simply equalize income . . . rather than going through the traditional needs analysis,” and concluding that “the trial court abused its discretion by failing to enter specific findings on [the recipient spouse’s] financial needs and condition”).

¶19 In this case, the trial court determined that the evidence Kawasaki presented at trial was insufficient to allow the court to make the findings necessary for an alimony award. In its ruling, the court noted that Kawasaki “did not submit a financial declaration” at trial, nor did she present any “bank statements” or other “documentary evidence regarding her . . . expenses” The court—presumably in an effort to locate admitted evidence upon which it could rest an imputation of some of Kawasaki’s expenses—then noted that Wellman had not submitted a financial declaration at trial either, nor had he provided bank statements or any “detailed testimony regarding either of the [parties’] monthly financial obligations.” Finally, the court discussed Kawasaki’s own testimony at trial, but concluded that her “testimony regarding . . . her monthly expenses . . . was inconsistent and missing critical information,” and therefore “did not persuade the [c]ourt that alimony should continue.”

¶20 Under the circumstances presented here, we discern no abuse of the trial court’s discretion in reaching this conclusion. As already noted, Kawasaki’s attempt to place into evidence undisclosed bank statements was denied, and after that Kawasaki made no real effort to provide the court, at trial, with any concrete evidence of her monthly expenses. She did not attempt to submit her 2017 financial declaration for the court’s consideration at trial, and she did not attempt to provide any testimony about the line-item expenses on that declaration. And although she had in her possession, at trial, a copy of Wellman’s financial declaration, she asked Wellman only a few general questions about it, and did not attempt to ask him any specific questions about the expense line items. The only categories of expenses that she even generally discussed, through questioning of witnesses, were housing—as to which she testified that she thought a suitable apartment would cost “about $2,000” per month—and a vague category her counsel referred to as how much it would “cost to live with three kids”— as to which Wellman offered his view that “$1,000 to $1,500 [per month] for daily activities and food” would not be “unreasonable.” Against the backdrop of this evidence, we consider it far from an abuse of the trial court’s discretion for the court to conclude that Kawasaki had failed to carry her burden of demonstrating a need for alimony.

¶21      Kawasaki resists this conclusion on two grounds. First, she asserts that the trial court misinterpreted applicable law by refusing to even consider her alimony claim after the court ruled that the untimely disclosed bank statements were inadmissible. Kawasaki correctly argues—as we have explained above—that a party’s failure to provide documentation supporting an alimony claim is not necessarily fatal, so long as other evidence in the record can support imputation of the necessary expenses, and so long as a trial court is willing to exercise its discretion to make such imputations. And we acknowledge that certain statements by the trial court, during the pretrial discussion about the bank statements, may have left the impression that the court was refusing to consider Kawasaki’s alimony claim altogether. For instance, at one point Wellman’s attorney stated that his understanding of Dahl was “that a failure to supply bank statements prevents the [c]ourt from actually evaluating” Kawasaki’s alimony claim, and the court responded by stating that counsel’s argument was “consistent with [its] understanding of Dahl.” But later, the court noted that “if there are other documents” that could be used to “substantiate [Kawasaki’s] finances, then you can use those,” and told Kawasaki that she could “address alimony with documents that are already in the record” and that “if there are records of some kind that would support a claim for alimony, then [Kawasaki] can go forward” with that claim. And in its written ruling, the court clearly did not perceive Kawasaki’s alimony claim as entirely barred by her failure to provide documentation; instead, the court evaluated that claim against the backdrop of the evidence that had been presented at trial. Kawasaki is simply incorrect when she asserts that the trial court refused to consider her alimony claim.

¶22      Second, Kawasaki asserts that the trial court could have, and should have, made findings regarding her monthly needs from the evidence available in the record. We disagree that the evidence could have supported imputation of the full list of Kawasaki’s expenses; with regard to most of them, there was simply no evidence admitted whatsoever. For instance, there was no specific discussion at trial of utility expenses, automobile or transportation expenses, entertainment expenses, or clothing expenses. Had the trial court attempted to make findings regarding such unsupported expenses, it likely would have exceeded its discretion.

¶23 But a trial court, on this record, could perhaps have exercised its discretion to impute to Kawasaki a housing expense of $2,000 and a food expense of, say, $1,000. After all, housing and food are universal needs, and those figures were discussed at trial by both Kawasaki and Wellman and appeared to have been more or less undisputed. But while the court perhaps could have exercised its discretion to impute these two discrete expenses, we are not prepared to say that it was an abuse of discretion not to do so; after all, the evidence supporting these figures was vague at best and unsupported by any documentation. And in any event, even if the court had made these two imputations, that would have resulted in a determination that Kawasaki’s demonstrated monthly expenses were $3,000, a conclusion that would not have resulted in an alimony award given that Kawasaki’s net income was $2,800 per month and that Wellman had been ordered to pay Kawasaki $1,578 per month in child support. See Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (stating that, “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award” (quotation simplified)). Under these circumstances, even if the court had reached to assist Kawasaki by making these two specific imputations, that effort would not have resulted in any alimony award to Kawasaki.

¶24      In some cases, the evidence is solid enough, even without proper documentation from the alimony claimant, for a court to be able to exercise its discretion to impute at least some of the claimant’s expenses, especially basic universal ones like housing and food. See Munoz-Madrid, 2018 UT App 95, ¶ 10; see also Dahl, 2015 UT 79, ¶ 116 (stating that “courts may impute figures” (emphasis added)). Indeed, in keeping with the purposes of alimony, courts should attempt to do so where the evidence and equity permit. But in other cases—including this one—the evidence is simply not strong enough to support imputation of enough expenses to justify an alimony award. See Dahl, 2015 UT 79, ¶¶ 108–09 (stating that, where the claimant “provided no financial declaration, no supporting financial documentation, and no expert testimony,” her “unsubstantiated testimony did not satisfy her burden of showing her financial need”). We perceive no abuse of discretion in the trial court’s conclusion that, on this record, Kawasaki had not borne her burden of demonstrating entitlement to alimony.

CONCLUSION

¶25      As the party seeking an alimony award, Kawasaki bore the burden of showing her financial need for such an award. The trial court determined that Kawasaki had failed to meet that burden, and that conclusion was not an abuse of the court’s discretion.

¶26 Affirmed.

 

[1] In her brief, Kawasaki also challenges the trial court’s failure “to compensate [her] for Wellman’s post-separation destruction of her separate property, the Thunderbird.” We agree with Wellman, however, that this precise issue was not properly presented to the trial court and is therefore unpreserved. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue.”). At trial, the Thunderbird was discussed only as a negative asset, due to the loan the parties had taken out on the vehicle to pay marital debts. The only question the parties put before the court, as concerned the Thunderbird, was which of them (or both) should bear the responsibility for paying off the debts associated with the vehicle. Kawasaki did not make an argument that the Thunderbird had any positive equity, let alone an argument that any such value should be awarded to her as her separate property. Consequently, Kawasaki’s current claim to that effect, here on appeal, is not preserved for our review, and we do not discuss it further.

[2] As noted, the trial court excluded some of Kawasaki’s offered evidence on the ground that the documents had not been timely disclosed to Wellman. On appeal, Kawasaki does not challenge the court’s ruling excluding her undisclosed evidence.

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