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Tag: 2021 UT App 77

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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2021 UT App 77 – Miner v. Miner – alimony, attorney fees

2021 UT App 77  THE UTAH COURT OF APPEALS  

  

LISA P. MINER, Appellee,  

JOHN E. MINER, Appellant.  

  

Opinion  

No. 20200098-CA  

Filed July 15, 2021  

  

Fifth District Court, St. George Department  

The Honorable Jeffrey C. Wilcox No. 174500373  

  

Troy L. Booher, Julie J. Nelson, and Rodney R. Parker, Attorneys for Appellant  

  1. Adam Caldwell, Attorney for Appellee 

  

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE  

JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred.1   

  

HARRIS, Judge:  

¶1 John E. Miner appeals several aspects of a comprehensive set of rulings issued following a four-day divorce trial and posttrial proceedings; his chief complaints have to do with the trial court’s award of alimony to his ex-wife, Lisa P. Miner. We affirm the court’s orders in many respects, but reverse certain parts of the alimony award and the court’s attorney fees determination, and remand for further proceedings.   

BACKGROUND  

¶2 John and Lisa2 married in 1997, while John was in medical school. During the course of the marriage, John developed a highly successful anesthesiology practice, with his income generally rising over time; in the marriage’s final years, the family earned, from all income sources, just shy of $1 million per year. John and Lisa have four children together, three of whom were minors at the time of trial and two of whom are still minors today.   

¶3 The Miner family, and Lisa in particular, are equine enthusiasts and for years have owned horses. In 2007, at the total price of $2.6 million, the family completed construction of and moved to a property they colloquially refer to as “the Farm.” Situated on twenty acres of land, the Farm included both a 7,000 square-foot house and extensive equestrian facilities, including an “eight-stall barn” that was built with the intention—at least in part—to allow the family to “make money” from “board[ing] horses.” Maintenance of the Farm was expensive; mortgage payments alone were in excess of $16,000 per month, and it cost another $3,000 per month, on average, to cover utilities and other maintenance costs. John described the Farm as “a wonderful place” that “provided a lot of joy for [the] family,” but acknowledged that “it was over-the-top expensive.”   

¶4 In addition to their equestrian activities, members of the Miner family also enjoy other expensive hobbies. For instance, three of the children, as well as John, “are avid tennis players”; two of the children—the ones that are currently still minors—are particularly active in the sport, and have “aspirations to play . . . in college.” As a result, the cadence of the family’s schedule often revolves around the children’s tennis activities, including not only practices with expensive private coaches but also frequent tournaments, many of which involve travel to other cities. And while the family’s travels often involve tennis— including an expensive annual “pilgrimage” to a professional tournament in California—they sometimes travel for pleasure as well, including trips to Europe and other international destinations.   

¶5 In order to meet the “exorbitant” costs of maintaining the family’s lifestyle, during the marriage John maintained an aggressive and “erratic” work schedule, sometimes working sixty to ninety hours in a week. Although it is not unusual for anesthesiologists to work odd shifts with long hours, John chose to work more than any other partner in his practice and often volunteered for procedures that paid at a higher hourly rate, making him “the top wage earner” in his practice for twelve years running. From his medical practice, John earned on average about $900,000 per year in the last three years of the marriage. Anesthesiologists are “paid based on time and the type of case,” meaning that, in large part, John’s earnings were “based on the amount of time that [he] put in.” John had significant involvement with the children when he was at home—for instance, he helped with homework and coached their sports teams—but due in part to John’s heavy work schedule, Lisa managed the lion’s share of the day-to-day childcare duties.   

¶6 Lisa has a bachelor’s degree in exercise science and a master’s degree in athletic training, but she has never worked as an athletic trainer or exercise specialist, choosing instead to devote her time to raising the parties’ children. After the family finished building the Farm, Lisa began to earn an income as well, mostly by boarding horses and offering lessons as a dressage and horse riding instructor. In the last few years of the marriage, her average annual revenue from teaching lessons and boarding horses was approximately $32,000.   

¶7 In April 2017, Lisa filed for divorce, citing (among other things) irreconcilable differences. Lisa sought primary physical custody of the children, child support, alimony, and equitable division of the marital property. Some months later, the trial court entered an initial bifurcated divorce decree and two sets of temporary orders. Under those orders, Lisa and John were awarded joint physical custody, with Lisa the primary physical custodian, and with John exercising parent-time pursuant to section 30-3-35.1 of the Utah Code. John was to pay the parties’ monthly bills, and Lisa was allocated $3,000 per month for other expenses. The court also ordered the parties to sell the Farm, which they did.   

¶8 Soon thereafter, the case proceeded to a bench trial, which was held during four trial days spaced out over several months in mid-2018. During the trial, the court heard testimony from Lisa and John, as well as several other individuals, most notably a forensic accountant (Accountant)—who testified about a report (the Report) he had prepared regarding “marital income, marital expenditures,” and valuation of marital property, including valuation of John’s medical practice—and Lisa’s brother (Brother), a fellow anesthesiologist in John’s medical practice, who testified about the nature of the medical practice and its typical business expenses. After trial, the court issued a lengthy oral ruling stating its findings and conclusions; the ruling was later memorialized into written findings and a supplemental decree of divorce that were entered on December 31, 2018.   

¶9 We will discuss some of the particulars of the court’s ruling in more detail below, on an issue-by-issue basis. But in broad strokes, the court ruled in relevant part as follows: (a) the parties were “awarded joint legal and physical custody of the[] minor children,” with Lisa the primary physical custodian, and with John awarded six overnights in each fourteen-day period, although the court stated that equal parent-time should ultimately “be the goal”; (b) John’s income, for purposes of the child support and alimony calculations, was set at $75,000 per month; (c) Lisa’s income, for those same purposes, was set at $1,500 per month; (d) based on those calculations, John was ordered to pay monthly alimony to Lisa in the amount of $18,690 for twenty years, unless terminated earlier “upon the death of either party, or upon [Lisa’s] remarriage or cohabitation”; and (e) each party should pay his or her own attorney fees.   

¶10 After the ruling, both parties filed post-trial motions and, following two hearings on these motions, the court made four additional rulings pertinent to our review: (i) it reiterated the length and duration of its original alimony award, declining to grant John’s post-trial request to shorten the alimony period and craft a rehabilitative alimony award; (ii) it applied its alimony award retroactively to cover the months when its temporary orders were in effect, and determined that Lisa was entitled to $66,072.80 in retroactive alimony; (iii) it reiterated its order that each party pay his or her own attorney fees, despite John’s posttrial argument that he had, in effect, paid for a large portion of Lisa’s attorney fees during the proceedings and had not been credited for doing so; and (iv) it altered its previous parent-time order to impose an equal parenting arrangement, wherein each party would have the children for seven overnights during each fourteen-day period.   

ISSUES AND STANDARDS OF REVIEW  

¶11 John now appeals the trial court’s rulings, and presents two principal issues for our review. First, he challenges several aspects of the trial court’s alimony award. Where such challenges are preserved, we review all aspects of the trial 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 [our supreme court has] set” and so long as the trial court “has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84, 459 P.3d 276 (quotation simplified). However, John acknowledges that some of his challenges to the court’s alimony award are unpreserved, including some of his challenges to certain line items in the court’s calculation of Lisa’s needs. At John’s request, we will review these unpreserved challenges for plain error. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 37–39, 402 P.3d 219. “To demonstrate plain error, [an appellant] must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” Id. ¶ 32 (quotation simplified).3 

¶12 Second, John challenges the court’s attorney fees ruling, which we review for abuse of discretion. See Roberts v. Roberts, 2014 UT App 211, ¶¶ 7, 27, 335 P.3d 378 (“In divorce cases, both the decision to award attorney fees and the amount of such fees are within the trial court’s sound discretion.” (quotation simplified)).4    

ANALYSIS  

¶13 We begin with John’s multifaceted challenge to the court’s alimony award, analyzing each aspect of his challenge in turn. We then address John’s challenge to the court’s attorney fees order.   

  1. Alimony 

¶14 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.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified). “Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (quotation simplified). During their marriage, John and Lisa enjoyed a very comfortable lifestyle and high standard of living, and to allow Lisa to participate in that lifestyle following the divorce, the court ordered John to pay Lisa $18,690 per month in alimony for a twenty-year period.   

¶15 John advances a three-part challenge to the alimony award. First, he takes issue with the amount of that award, and contends that the court erred in its calculation of Lisa’s demonstrated needs, Lisa’s potential income, and John’s potential income. Second, he challenges the duration of the award, asserting that the court should not have awarded Lisa alimony for twenty years—the length of the marriage—but instead for a shorter “rehabilitative” period. Finally, John takes issue with the court’s decision to make the alimony award retroactive to cover the temporary orders period. We address each of these challenges, in turn.  

  1. Amount of Alimony  

¶16 The appropriate amount of any alimony award is governed by a multi-factor inquiry, first articulated in Jones v. Jones, 700 P.2d 1072 (Utah 1985). See id. at 1075. Now expanded and codified in statute, see Utah Code Ann. § 30-3-5(8)(a)(i)–(vii) (LexisNexis 2019), the first three factors—the so-called “Jones factors”—require a court to examine “(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; [and] (iii) the ability of the payor spouse to provide support,” Dahl v. Dahl, 2015 UT 79, ¶¶ 94–95, 459 P.3d 276 (quotation simplified).   

¶17 “A party seeking alimony bears the burden of demonstrating to the court that the Jones factors support an award of alimony.” Id. ¶ 95. “To satisfy this burden, a party seeking alimony must provide the court with a credible financial declaration and financial documentation to demonstrate that the Jones factors support an award of alimony.” Id. ¶ 96. “And in all cases” the trial court “must support its [alimony] determinations with adequate findings,” Rule, 2017 UT App 137, ¶ 22, “on all material issues,” Howell v. Howell, 806 P.2d 1209, 1213 (Utah Ct. App. 1991) (quotation simplified). “Failure to do so constitutes reversible error, unless pertinent facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Id. (quotation simplified).  

¶18 “In many cases, the level of expenses and the standard of living of the separated parties at the time of trial will not be representative of the parties’ customary or proper status or circumstances” during the marriage. See Rule, 2017 UT App 137, ¶ 16 (quotation simplified). “Our precedent thus reflects and reinforces the general rule that alimony should be based upon the standard of living the parties established during the marriage rather than the standard of living at the time of trial.” Id. ¶ 15. “We have therefore cautioned against determining alimony based upon actual expenses at the time of trial because . . . a party’s current, actual expenses may be necessarily lower than needed to maintain an appropriate standard of living for various reasons, including, possibly, lack of income.” Id. ¶ 16 (quotation simplified); see also Utah Code Ann. § 30-3-5(8)(e) (“As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony . . . .”). However, in appropriate situations with regard to certain line items, a court may apply “equitable principles,” in its discretion, to “base alimony on the standard of living that existed at the time of trial.” See Utah Code Ann. § 30-3-5(8)(e); see also Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 21, 437 P.3d 411 (“[A] trial court may, in its discretion, assess some of the parties’ expenses as of the time of separation, but nevertheless assess other expenses as of the time of trial.”).   

¶19 With these principles in mind, we turn to John’s challenge to the amount of the alimony award, which also breaks down into three parts: John challenges the court’s computations of Lisa’s needs, Lisa’s income and earning capacity, and John’s income and earning capacity. We address John’s arguments in that order.  

  1. Lisa’s Needs 

¶20 As part of its overarching ruling awarding Lisa monthly alimony of $18,690, the court determined that Lisa’s reasonable monthly expenses, measured with the marital standard of living in mind, were $26,000. That figure, in turn, was the sum of fortyfive separate line-item determinations, most of which John does not challenge. However, John raises eleven separate criticisms of the court’s computation of Lisa’s expenses, asserting that the court’s awards in certain categories “were unsupported by any documentation or corroborating evidence,” and that other awards exceeded what was supported in the evidence. We address each of these challenges, but first pause to describe, by way of background, how Lisa developed many of the expense computations she included in her financial declarations and about which she testified at trial.5 

¶21 In early 2018—after Lisa had filed for divorce but before trial—John and Lisa jointly hired Accountant to create the Report, in which he itemized the parties’ past and future estimated monthly expenses, and valued their marital property, including John’s business. In describing the process of preparing the Report, Lisa testified that she and Accountant gathered credit card statements, bank statements, and “everything we could possibly find” for “every month in 2015 and ’16.” Once they had the documents, they “spent several hours over many days” going over “every single transaction and expense for 2015 and ’16” and “placing them into categories.” The Report was admitted into evidence, and served as the primary support for the expense line items on Lisa’s financial declarations. In addition, both John and Lisa testified as to different aspects of their marital standard of living, and Lisa also testified extensively about several of the line items in her expense requests.   

  1. Tennis Expenses  

¶22 The trial court allocated $1,000 per month to Lisa for tennis-related expenses, an allocation John asserts was “unsupported by any documentation or corroborating evidence.” This challenge is preserved, so we review for abuse of discretion.   

¶23 John correctly points out that Lisa did not include a tennis-related line item in her financial declarations, nor was it included in the Report. However, in her closing argument memorandum, Lisa requested $1,000 per month to be used for “Tennis Coaching/Tennis Tournaments & Travel,” and the trial court granted this request in full, without elaboration in its written findings as to what the funds were intended to cover. Yet it is clear from Lisa’s testimony and evidence for other line items (which went unchallenged by John) that this tennis specific line item was not intended to include money for Lisa to buy the children tennis-related clothing, or to pay for gasoline and other expenses related to transporting the children to tennis activities.  

¶24 John challenged this line item in a post-trial motion, asserting that because he had “agreed to pay for all tennis related items and the court awarded him the money to do so,” Lisa had no need for funds to be allocated toward tennis expenses. In the back-and-forth associated with that motion, it became clear that the line item was meant to include expenses for tennis camps, lessons, rackets, and other tennis-related costs; Lisa acknowledged that John was paying most of these expenses, but she argued that the court should allow her to have a budget for some of them—and not run them all through John’s side of the finances—so that she would not end up “stuck at home while [John] is . . . the only one that gets to . . . participate in these [tennis] activities that” the family had “historically all shared and enjoyed in.” The trial court was persuaded by that argument, at one point stating that it was awarding this particular line item to Lisa so that she—like John—could have some ability to spend money on “tennis for the kids,” and stating, by way of example, that Lisa could use the money to enroll the children in a particular tennis camp, even if John did not agree to it.   

¶25 There is no dispute that the costs associated with the children’s tennis activities—even excluding amounts for tennis clothing, and gasoline for transportation, which are included in other categories—were a “family expense,” and that the total costs amounted to, on average, somewhere around $2,500 per month. We perceive no abuse of the court’s discretion in ordering that some of these expenses be routed through John’s side of the finances, and some through Lisa’s, in order to give both parties some measure of control over how those funds are spent. And given that the family’s tennis expenses totaled some $2,500 per month, the court’s choice of $1,000 for this line item was—contrary to John’s assertion—well within the range supported by the evidence. We therefore reject John’s challenge to the tennis expense line item.   

  1. Entertainment  

¶26 The trial court allocated $625 per month to Lisa for “entertainment,” which was exactly half of what Lisa requested. John challenges this line item, asserting that Lisa failed to provide any evidence supporting it. This challenge is preserved, so we review for abuse of discretion.   

¶27 When asked on direct examination what was included in this category, Lisa indicated that she was unsure, but that even her requested amount of $1,250 was “less than what [the family had] historically spent” on entertainment. On cross examination, she was not able to cite any specific examples of what she intended to include in that category, but testified that she and Accountant had derived the number by going through the credit card statements and that “every single thing that was entertainment, we put in there.” John asserts  that this evidence is insufficient, comparing this situation to the one presented in Dahl v. Dahl, 2015 UT 79, 459 P.3d 276, in which our supreme court clarified that the recipient spouse needs, at minimum, some evidence of financial need beyond merely “unsubstantiated testimony” regarding marital expenses. See id. ¶¶ 108–09 (explaining that the petitioner did not meet her burden of showing financial need because “[s]he provided no financial declaration, no supporting financial documentation, and no expert testimony”).   

¶28 We take John’s point that Lisa’s trial testimony about this line item was not as specific as it could have been. But in our view, this situation is a far cry from Dahl. Here, Lisa’s entertainment expense was supported by more than unsubstantiated testimony. As Lisa explained, the line item was created during the thorough review she and Accountant made of the family’s financial documents, and the $1,250 amount appears as a line item in the Report. And our examination of some of the credit card statements admitted into evidence reveals that John and Lisa each were spending several hundred dollars every month on things that certainly appear to be entertainment-related. Indeed, John requested as much as $1,000 per month in entertainment expenses. We also note that the trial court penalized Lisa for her lack of specificity by cutting her request in half.   

¶29 In the end, we consider the “entertainment” line item to be supported by sufficient evidence, and we perceive no abuse of discretion in the trial court’s handling of the matter. To the contrary, we agree with its assessment that an entertainment budget for Lisa of $625 per month was not “out of line,” considering that the parties “liv[ed] on almost a million dollars a year” during the marriage.   

  1. Legal and Accounting Expenses  

¶30 The trial court allocated $200 per month to Lisa for legal and accounting expenses, cutting Lisa’s request down from $333.33. John challenges this line item, again asserting that Lisa failed to provide any evidence supporting the expenses. This challenge was preserved, so we review for abuse of discretion.   

¶31 Lisa explained at trial that her request for $333 per month in legal and accounting costs was based on Accountant’s review of the parties’ expenses, and was intended to cover her costs of “[h]aving taxes prepared, things like that,” and for non-divorce-related legal fees for things that come up from time to time, as had happened occasionally during the parties’ marriage. The line item appeared in the Report. John protests that this amount is not intended to cover any of the attorney fees incurred in the divorce case—indeed, those are discussed separately in this opinion, see infra part II—and that Lisa presented no evidence that she would have any legal expenses after the divorce was over. The trial court appeared to take John’s point about attorney fees, and on that basis cut Lisa’s allocation from $333.33 to $200, but still found that Lisa needed some money for legal fees and accounting fees combined, offering its view that Lisa “was going to need some accounting help” that consisted of “more than [simply] taking [her tax documents] to H&R Block,” and that “$200 a month is fair” for someone in that situation to pay for accounting services.   

¶32 John contends that this amount is too high, but he supports that contention only with a bare assertion that tax preparation costs for many people typically amount to only “a couple hundred dollars per year, not per month.” John makes no effort to engage with the trial court’s viewpoint that, given the nature of these parties’ finances, and the contested post-divorce situation Lisa would be in, Lisa would need more legal and accounting services than an average person might. Under these circumstances, where the line item amount was supported by Accountant’s Report, as well as by Lisa’s testimony, there was more than mere unsubstantiated testimony to support Lisa’s request. We perceive no abuse of discretion in the trial court’s determination that Lisa would need $200 per month for legal and accounting services in the future.   

  1. Out-of-Pocket Health Expenses  

¶33 The court allocated $727.58 per month to Lisa for out-of-pocket health-related expenses (as distinct from health insurance premiums). John challenges this line item, again asserting that Lisa failed to provide any evidence supporting it. This challenge was preserved, so we review for abuse of discretion.   

¶34 For an expense category entitled “Other Health, Out of Pocket, Uninsured, Deductible,” Lisa requested $8,731 annually (or $727.58 per month). When asked about this category during trial, Lisa testified that it was intended to include, among other things, money for “allergy shots” that she and two of the children receive every six weeks (which cost about $1,500 annually), and money for the children to attend counseling (which apparently costs $120 per child per session). Indeed, Lisa’s requested figure is derived directly from the Report, in which Accountant concluded that the parties spent $17,462 annually on “Other Health” costs, apart from insurance premiums, and that Lisa’s share of these expenses was $8,731 per year, or $727.58 per month. Based on this evidence, the trial court granted Lisa’s request, allocating her $727.58 per month for these expenses.   

¶35 John asserts that the trial court’s allocation is unsupported by evidence, claiming that the children did not really go to counseling that often and that, in any event, the children’s health expenses would phase out over time and therefore should not be included in the alimony calculation. John’s objection is unpersuasive, however, where the trial court’s award is based— to the penny—on the figures generated by Accountant, which in turn were derived from the parties’ expenses during the marriage. In this situation, the court’s allocation is supported by ample evidence, and the court did not abuse its discretion in allocating $727.58 to Lisa in this category.  

  1. Car Payment  

¶36 The trial court allocated $833 per month to Lisa for “Existing/Replacement Vehicle Purchase.” John challenges this award, asserting that it exceeds both the amount that Lisa originally requested and the amount supported in the evidence. This challenge is preserved, so we review for abuse of discretion.   

¶37 In her financial declaration, Lisa listed $600 as an expense item for “Vehicle – Future Replacement.” But Accountant did not include any such line item in the Report; instead, the Report indicates loan payments for two specific vehicles, and Accountant testified that he assumed, for purposes of preparing the Report, that John was making both of those payments. However, he also testified that, if Lisa was driving one of those vehicles, then it would make sense to move the payment associated with that vehicle to Lisa’s column. Lisa was in fact driving one of those vehicles and, according to the Report, the monthly payment on that vehicle was $809. By way of comparison, the monthly payment on the vehicle John was driving was $890, and—as discussed below, infra part I.A.3.b— the court found that John should be allocated $833 for a car payment expense.   

¶38 At trial, Lisa was asked about the discrepancy between the monthly payment on the car she was driving ($809) and the monthly car expense she was asking for in her financial declaration ($600), and she pointed out that the amount she was asking for was “considerably less” than what she had been spending. Lisa even indicated that she was willing to sell that vehicle and “replac[e] [it] with something with a lower payment,” and that this was the reason why she asked for only $600 for a future car payment. But despite these concessions, Lisa—in her written closing argument—requested $833 for a car payment, and the trial court ultimately allocated her that amount.   

¶39 John assails the trial court’s allocation for Lisa’s car payment, asserting that no evidence supports the $833 allocation, and that the court abused its discretion by not selecting $600 as the appropriate amount for this line item. We disagree. That $833 figure is the same amount the court allocated to John, and is only $24 more than the amount that the family had been spending on Lisa’s car payment during the marriage. While the trial court, with appropriate findings, could have awarded a lesser amount in line with Lisa’s $600 request, see Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 21, 437 P.3d 411 (noting that courts have the discretion, for certain line items, to assess certain expenses as of the time of trial, rather than as of the date of separation), it is the “general rule” that “the court should look to the standard of living, existing at the time of separation, in determining alimony,” see Utah Code Ann. § 30-35(8)(e) (LexisNexis 2019). We perceive no abuse of discretion in either the court’s general decision to base Lisa’s car payment allowance on the parties’ expenses during the marriage, or in the court’s specific decision to allocate $833 for that purpose—the same figure it allocated to John, and within the range ($809 to $890) that the parties had spent on each of their car payments during the marriage.   

  1. Student Loan Payments  

¶40 The trial court allocated $134.75 per month to Lisa for student loan payments. John challenges this line item, asserting that this amount exceeds what the evidence supports. This particular challenge is unpreserved, so we review for plain error.   

¶41 In her financial declaration, Lisa requested an allocation of $135 per month to make payments on her outstanding student loan obligations. In his Report, Accountant determined that Lisa had $1,617 in annual student loan expenses, an amount that, paid monthly, equals $134.75. The trial court awarded Lisa the amount reflected in the Report.   

¶42 John acknowledges that Lisa has legitimate student loan debt. But he contends that the total debt is less than $7,000, and at $135 per month can be paid off in about four years. John calculates that, over the full twenty-year alimony period, this line item will result in him paying Lisa more than $32,000, and will require him to make payments for Lisa’s student loans long after they have been paid in full. John therefore contends that the court plainly erred by including any amount for student loan debt in the long-term alimony computation. We disagree.   

¶43 In this situation, the trial court did not commit plain error by including a line item for an uncontested student loan payment. As noted above, one of the purposes of an alimony award is to “approximate the parties’ standard of living during the marriage as closely as possible.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified). In assessing alimony, the trial court was tasked with looking at Lisa’s needs and expenses “in light of the marital standard of living.” Id. ¶ 15. During the marriage, and at the time of trial, Lisa had a student loan expense, and we do not consider it plain error for the court to allocate an amount for such an expense, even if it may not be certain that the expense will be present for the entire twenty-year alimony period. “Prospective changes to alimony are disfavored,” although they “are appropriate” when “the future event is certain to occur within a known time frame.” See Richardson v. Richardson, 2008 UT 57, ¶ 10, 201 P.3d 942. Given the relative certainty of the expiration of Lisa’s student loan debt, it would have been within the court’s discretion to order a prospective change—had John asked for one—in John’s alimony obligation in four years, when those loans will be paid off. But we cannot say that the court plainly erred by declining to sua sponte make such an order in this case.   

  1. Farm and Horse Expenses  

¶44 The trial court allocated $5,000 per month to Lisa for “Farm/Horse Expenses.” This is the largest single expense category in the court’s alimony award, and John challenges it on the basis that the amount exceeds what the evidence supports. This challenge is preserved, so we review for abuse of discretion.   

¶45 In her financial declaration, Lisa asked for an allocation of $5,000 for “Horse care (food, boarding, veterinarian, equipment).” Lisa owned five horses during the final years of the marriage, although one horse died prior to trial, leaving Lisa with four horses at the time of trial. Accountant computed Lisa’s historical expenses related to horse care and upkeep to be nearly $90,000 annually, but given that the family had been ordered to sell the Farm, Lisa recognized that her horse operations would not proceed in exactly the same manner moving forward. In light of the changed circumstances, Lisa estimated that her horse expenses, in a post-Farm world, would be $60,000 annually, or $5,000 per month. Although Accountant had solid figures to support the higher historical expense amount, he acknowledged on cross examination that the lower $60,000 figure was “Lisa’s estimate,” based on “historical expenses, [of] what she planned to do in the future, [and] kind of taking an amount per horse and dividing that out.” He asserted that this was his and Lisa’s “best shot at a reasonable estimate.”   

¶46 Lisa provided a document that gave a “breakdown” of estimated prices for numerous horse-related expenses, which was entered into evidence for “illustrative purposes.” According to Lisa’s estimates, her horse care and maintenance expenses would, in the future, range from $4,691.25 to $5,241.25 per month. During trial, Lisa testified in detail about several of these estimated costs, including: boarding costs; hay and other feed; hoof care; lessons for Lisa to continue training the horses; vaccinations; preventive dental care; supplements, vitamins, and prescription medications; money that would allow her to have “wiggle room” for colic and other ailments that might come up; and “bridal bits, saddle bags, . . . [and other] horse-related equipment that need[s] to be replaced every so often.”   

¶47 The trial court recognized that John vigorously disputed Lisa’s requested amount for horse care. But “after some careful analysis and looking at what the evidence was,” the court ultimately found that, although it was “expensive to have horses,” Lisa had owned horses “for 20 years” and opined that she should not be required to cease her equestrian pursuits merely because she was divorced. As for the amount of the costs, the court found that “$5,000 a month is needed,” although it did not make any specific finding about the number of horses (whether four, five, or some other number) that Lisa would be expected to have.   

¶48 John assails the allocation for horse care expenses, raising two specific challenges. First, he contends that Lisa did not produce sufficient documentation to support the $5,000 monthly figure. We disagree. The reason no historical documentation was available to support that exact figure was because the historical expenses, incurred while the family lived at the Farm, were much higher. Lisa acknowledged that the post-Farm landscape would look different, and that it would not make sense for her to be allocated the same amount for horse care in the future as the parties had spent in the past; accordingly, Lisa attempted to estimate what the new (and reduced) future expenses would be based on extrapolation from the higher historical expenses. Those estimates were supported not only by Lisa’s trial testimony, but also by a “breakdown” document setting forth each estimated expense. While expenses, for alimony purposes, are usually calculated based on historical data taking into account the parties’ standard of living during the marriage, see Rule, 2017 UT App 137, ¶ 15, in certain instances parties may acknowledge changed circumstances, and attempt to estimate expenses moving forward, cf. Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2019) (stating that, in appropriate situations with regard to certain line items, a court may apply “equitable principles,” in its discretion, to “base alimony on the standard of living that existed at the time of trial”). Lisa and the court properly engaged in that exercise here, coming up with a reasonable estimate for future horse care expenses that was significantly less than the historical amount.   

¶49 Second, John asserts that the $5,000 amount was calculated based on five horses, and contends that this amount is too high in view of the fact that one of the horses died prior to trial, and that only two of the surviving horses were Lisa’s “personal horses” (with the other two apparently sometimes used to produce income through lessons). But even if the court based its calculations on an assumption that Lisa had five horses, we see no abuse of discretion there. Lisa had at least five horses during the marriage, and John offers no good reason why the court could not have assumed, based on the standard of living enjoyed during the marriage, that Lisa would be rightfully able to replace the horse that died. And any income from the horses should be taken into account during consideration of the second Jones factor—Lisa’s ability to earn income—and not during consideration of the expenses associated with keeping the horses.   

¶50 Thus, we perceive no abuse of discretion in the trial court’s allocation of $5,000 per month to Lisa for horse care and maintenance.   

  1. Mortgage and House-Related Expenses  

¶51 The trial court allocated $3,500 per month to Lisa for a mortgage payment. The court’s calculation assumed that Lisa would purchase a house worth approximately $750,000, and would make a down payment of approximately $150,000. John does not dispute that a $3,500 monthly payment is an appropriate allocation for a $750,000 house, but he nevertheless challenges this line item, asserting that, following the court’s equitable distribution of marital property, “neither party is left with $150,000 for a down payment,” and as a result “Lisa will not be able to afford a $750,000 home.” This challenge was not preserved, so we review for plain error.  

¶52 As noted, during the marriage the parties lived at the Farm, a $2.6 million property complete with equestrian facilities. The court and the parties acknowledged that neither John nor Lisa would be able to live in that kind of property following the divorce; indeed, the court recognized that John had made a “voluntary choice to downsize” into “a modest, . . . $345,000 home.” But the court did not deem it necessary to require Lisa to make that exact same choice, instead finding it appropriate and equitable for Lisa to have the ability to acquire a $750,000 property. The court offered its viewpoint that, because Lisa “had a horse property before, . . . she should be able to continue that lifestyle, if possible.” And the court ultimately “agree[d] that to get a horse property, she would need something . . . in the value of $750,000.” It therefore granted her request for $3,500 per month in mortgage expenses.   

¶53 In challenging the court’s allocation for this line item, John does not assert that a $750,000 house is out of line for Lisa, taking into account the parties’ marital standard of living. Nor does John challenge $3,500 as being an inappropriate amount for a mortgage payment on a $750,000 house. Instead, he focuses his energies on the assertion that Lisa will have only $100,000—and not $150,000—for a down payment, and reasons therefrom that, without a $150,000 down payment, she will not be able to afford a $750,000 house, and therefore concludes that Lisa’s actual mortgage payment will be lower than $3,500 per month. But John does not cite any evidence in the record supporting the notion that Lisa will not be able to purchase a $750,000 house with a $100,000 down payment. Under these circumstances, we cannot conclude that the court committed plain error in allocating $3,500 to Lisa for a monthly mortgage payment.6   

  1. i.  Parenting Expenses 

¶54 John next challenges the amounts the court allocated to Lisa for food and other household expenses, pointing out that these allocations were based on the assumption that Lisa would have the minor children in her care for eight overnights during each fourteen-day period, and asserting that the court should have adjusted those line items after it changed the parties’ parent-time arrangement post-trial to a true 50/50 split. This argument was preserved, so we review for abuse of discretion.   

¶55 John asserts that several of Lisa’s expense allocations were calculated under the assumption that she would have more parent-time than he would; by way of example, he points out that Lisa’s food allocation is “2.5 times larger” than his, and that her “clothing budget [is] twice as large.” John brought this issue to the trial court’s attention in a post-trial motion, but the court did not grapple with John’s argument that some of Lisa’s line items might need to be reduced in light of the post-trial parent time adjustment. Similarly, John raises this issue in his appellate brief, but Lisa provides no argument in response.   

¶56 Given that John’s argument makes intuitive sense—Lisa might need slightly less for food and other household expenses under a 7/7 parent-time arrangement than she would under an 8/6 arrangement—and given that neither the trial court nor Lisa has endeavored to explain why John’s argument is wrong, we credit John’s argument and remand this issue to the trial court for adjustment, or at least for an explanation as to why no such adjustment is necessary.   

  1. Retirement Savings and Asserted Mathematical Error  

¶57  Next, John asserts that the trial  court made a “mathematical error” in adding the various line-item allocations for Lisa’s expenses. In particular, John asserts that the individual line-items total $25,512.13, yet the trial court found that Lisa had $26,000 in monthly expenses. Thus, John asserts that the court’s summed figure is approximately $500 too high. Lisa counters that there is no mathematical error but, instead, opines that the discrepancy results from a “typo” in the court’s listing of her allocation for “Voluntary Retirement Savings.” In Lisa’s view, the court listed $2,000 for that line item in the table in its written ruling, but really intended to award $2,500; Lisa maintains that, when the correct number is used in the tally, the total is $26,012.13.7  John did not preserve this challenge, and we therefore review only for plain error.   

¶58 In her financial declaration, Lisa listed $2,500 as the amount she spent as a “Retirement Contribution.” And in the Report, Accountant determined that the parties had been saving approximately $54,000 per year during the marriage, and proposed that each of them be allocated $30,000 ($2,500 monthly) for “Voluntary Retirement.” Lisa repeated this request in her closing argument memorandum, again asking the court to allocate $2,500 per month to her for “Voluntary Retirement Savings.” John asserted at trial that retirement savings was not a legitimate need, but the court, although noting that “there is some traction to that argument,”8 made a contrary oral finding. It opined that “it would seem prudent,” based on how the parties “were living, that a $2,500 a month need to put away for savings . . . is a need.” It also pointed out that John had “historically . . . been putting away $4,500 a month out of his income in retirement,” and found that Lisa should be allowed to share in that opportunity.   

¶59 But in the table in its written findings, the court struck through the $2,500 figure and inserted a $2,000 figure. Notably, it also mentioned this change in its narrative written findings, specifically stating in the paragraph following the expense table that it had “reduced the proposed amount from $2,500 to $2,000.” Thus, the reduction from $2,500 to $2,000 is not—as Lisa suggests—merely an unintended “typo,” but appears to have been an intentional adjustment by the trial court.   

¶60 The court, however, apparently neglected to re-sum all of the line items after making this adjustment. Indeed, our own review of the court’s arithmetic confirms John’s assertion that the court made a mathematical error, because the individual line items, when added together, total only $25,512.13. Such an error constitutes plain error—it should have been obvious to the trial court, and the error is prejudicial to John. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 32, 402 P.3d 219. Accordingly, we direct the trial court, on remand, to correctly sum up the line items that constitute Lisa’s reasonable expenses.  

  1. Tax-Related Expenses  

¶61 The trial court determined that Lisa would need to pay $3,416.66 per month in federal income tax, $916.67 per month in state income tax, and $116.67 per month for FICA and Medicare. John challenges these amounts, asserting that the tax computations relied on assumed income from a higher alimony amount than Lisa was ultimately awarded. This challenge was preserved, so we review for abuse of discretion.   

¶62 The tax figures adopted by the court were taken directly from Lisa’s financial declaration. But those figures were based on an underlying assumption that Lisa’s total monthly expenses, excluding taxes, were $23,638, and that she would be receiving taxable alimony payments in excess of $28,000. The trial court, however, did not allocate to Lisa all of the amounts she had requested. In the end, the court found that Lisa’s total monthly non-tax expenses were $21,062.13, and ordered that she receive taxable alimony payments of $26,000.   

¶63 John asserts that the court erred by not redoing the tax computation following its downward adjustments to some of the line items in the list of Lisa’s expenses. We agree. The tax figures were derived from underlying expense amounts that the court partly rejected. When adjustments are made to the amount of a recipient spouse’s non-tax expenses, it becomes necessary to recalculate that spouse’s tax obligations. We therefore instruct the trial court, on remand, to recalculate the tax expense line items, based both on the adjustments it already made to Lisa’s expenses and failed to account for, as well as on the new adjustments that we, in this opinion, instruct it to make to Lisa’s expenses and (as discussed below, infra part I.A.2) to her imputed income.   

¶64 Thus, in sum, we sustain John’s challenge to the court’s findings regarding Lisa’s expenses in the following particulars: (a) we instruct the court to adjust, if necessary, Lisa’s food and household expense allocations based on the change to equal parent-time; (b) we instruct the court to correctly sum its line items, and correct the mathematical error; and (c) we instruct the court to recalculate Lisa’s tax obligations, after making the rest of the adjustments required by this opinion. In all other respects, we reject John’s challenges and affirm the trial court’s determinations with regard to Lisa’s reasonable monthly expenses.   

  1. Lisa’s Earning Capacity 

¶65 The trial court determined that Lisa was capable of earning $1,500 per month, and imputed that figure to her for purposes of the second Jones factor. John challenges this determination, asserting that Lisa should be deemed capable of earning more. This issue is preserved, so we review for abuse of discretion.   

¶66 The second Jones factor requires a court to assess the recipient spouse’s “earning capacity or ability to produce income.” Dahl v. Dahl, 2015 UT 79, ¶¶ 94–95, 459 P.3d 276 (quotation simplified). And when faced with “an underemployed spouse,” a trial court “may impute income” to that spouse. Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 63, 402 P.3d 219 (quotation simplified). “The imputation analysis involves determining whether a party is voluntarily unemployed or underemployed and, if so, how much income ought to be imputed. A person is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or underemployed.” Christensen v. Christensen, 2017 UT App 120, ¶ 21, 400 P.3d 1219 (quotation simplified). “Any income imputation must ‘be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community.’” Vanderzon, 2017 UT App 150, ¶ 63 (quoting Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis 2012)). Furthermore, “imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Christensen, 2017 UT App 120, ¶ 22 (quotation simplified).  

¶67 In her financial declaration, Lisa listed her occupation as “Homemaker/Part-Time Horse Boarding.” At trial, Lisa indicated that she had made a deliberate choice not to seek fulltime employment outside the home, choosing instead to devote her time to caring for the parties’ children. Nevertheless, she was able to generate some revenue (if not profit, given the high costs of keeping horses) during the final years of the marriage through boarding horses and giving riding lessons. In 2015 and 2016, her average annual income from these activities was $32,865. But because the parties found it necessary to sell the Farm, including the equestrian facilities, no party seriously contends that Lisa should be expected, moving forward, to earn income from horse boarding and giving riding lessons.   

¶68 Instead, John contends—after retaining a vocational consultant whose report was admitted into evidence—that Lisa is capable of full-time employment in several capacities (for instance, as an exercise specialist, production assembler, customer service representative, office clerk, or receptionist), and that Lisa should therefore be imputed a full-time wage.  

According to the consultant’s report, an exercise specialist earns $35,945 per year, while the other jobs would pay between $19,280 and $20,930 per year. During examination by her own attorney at trial, Lisa was asked about these potential jobs, and she acknowledged that she “could learn” to be a receptionist; that she had the necessary skills to be an office clerk; that she “could do what was needed” to succeed as a customer service representative; and that, although she did not know what a “production assembler” was, she “could learn what [she] needed to do” in order to manage the job. Lisa pushed back, however, when asked if she could succeed as an exercise specialist, and offered her view that she did not have the necessary current qualifications and experience for that job.   

¶69 The court found that Lisa was not qualified to work as an exercise specialist, stating that it was “not persuaded that [Lisa] is capable of earning the $3,000.00 to $4,000.00 [per month that John] suggests . . . , given that [Lisa] has not primarily worked outside the home, and has had no relevant work related experience in the field in which she obtained her degree in the last 20 years.” However, the court made no specific finding that Lisa was unqualified for the other full-time positions. Instead, the court stated as follows:  

The Court also finds that where [Lisa] has been a full-time stay-at-home mother for the past 20 years, it is not reasonable in this case to expect that [Lisa] should go out and get a job, making her work fulltime, forcing the children into further surrogate care. Thus, the Court imputes [Lisa] with $1,500.00 per month, and it will be up to [Lisa] to determine whether or not she ultimately wants to obtain employment.   

¶70 John challenges this ruling, asserting generally that— especially given the equal parent-time arrangement—Lisa should be expected to work full-time, just as he is expected to work full-time, and asserting specifically that Lisa should be imputed “at least $20,600” of annual income, approximately the amount earned by a customer service representative. We agree with John.   

¶71 First, as discussed more fully below, the court did not abuse its discretion by expecting John to continue to work at least full-time, as he historically has, despite the fact that he cares for the minor children on seven out of every fourteen nights. See infra part I.A.3.c. In this case, given that each parent is capable of full-time employment and has equal childcare obligations moving forward, it is inequitable to expect one parent to work full-time but excuse the other from any similar obligation. See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2019) (explaining that in determining alimony, “the court shall consider . . . equitable principles”). The calculus may well be different in other situations, such as where one parent bears the lion’s share of childcare duties. See Rehn v. Rehn, 1999 UT App 41, ¶¶ 4, 9, 974 P.2d 306 (stating, in a case where the payor spouse had only three overnights in a fourteen-day period, that the trial court had properly “impute[d] a lesser income to the recipient spouse so that she might give adequate care and nurturing to the parties’ minor children”); see also Utah Code Ann. § 30-3-5(8)(a)(v) (mandating that, in determining alimony awards, a court “shall consider . . . whether the recipient spouse has custody of minor children”). But here, where childcare obligations are equal, and where neither parent labors under any particular impediment to full-time employment, we are persuaded by John’s argument that Lisa should be imputed a full-time wage.   

¶72 Second, with regard to which full-time wage to impute, John does not directly challenge the trial court’s finding that Lisa was not qualified to assume a full-time position as an exercise specialist. But John does challenge the trial court’s failure to impute income to Lisa in line with a customer service representative position, which position Lisa acknowledged she was qualified to assume. We find John’s argument persuasive. A vocational consultant determined that Lisa is capable of working as a customer service representative, and Lisa herself acknowledged as much. And the trial court offered no reason— in either its oral or written findings—why Lisa’s acknowledgement should not be given weight. Moreover, we cannot ascertain the source of the court’s $1,500 monthly figure.   

¶73 Accordingly, we conclude that the trial court abused its discretion by not imputing a full-time wage to Lisa, in line with the parties’ equal parent-time arrangement and in line with Lisa’s acknowledgement that she was qualified for full-time work. We therefore reverse the court’s ruling on this point, and remand with instructions to impute $20,600 in annual income to Lisa—the specific amount John asks us to impute.   

  1. John’s Ability to Provide Support 

¶74 The trial court determined that John’s income, for purposes of the third Jones factor, was $75,000 per month. John challenges this determination on several grounds, all but one of which (identified below) were preserved. Thus, unless otherwise noted, we review the court’s determinations for abuse of discretion.   

  1. Farm Income  

¶75 The trial court calculated John’s income from the parties’ tax returns from 2015, 2016, and 2017. But the amounts listed on those tax returns included not only the income John earned from his anesthesiology practice, but also income the parties earned together from operating the Farm. In his first challenge to the trial court’s computation of his income, John complains that the court improperly included Farm income in the computation, and asserts that it should have been excluded moving forward since the parties have sold the Farm. We agree with John.   

¶76 We take Lisa’s point that courts typically use historical averages as the starting point for calculations of income for alimony purposes. But in situations like this, where the source of part of the income is a property that the court has ordered to be sold in connection with the divorce, it may be improper to include that portion of income in the calculation. See Utah Code Ann. § 30-3-5(8)(e) (stating that, in appropriate situations regarding certain aspects of an alimony calculation, a court applying “equitable principles” may “base alimony on the standard of living that existed at the time of trial”). In this case, there is no evidence that John intends to attempt to earn income from equestrian-related endeavors in the future; indeed, as discussed above, the Farm has been sold and the horses now belong to Lisa. Thus, there is no evidence to support an imputation of equestrian-related income to John. We agree with John that the trial court abused its discretion in including Farm income in John’s income calculation, and we direct the court, on remand, to exclude Farm income from the calculation.   

  1. John’s Business Expenses  

¶77 With regard to John’s income from his anesthesiology practice, the trial court recognized that John’s gross income as a self-employed individual was to be “calculated by subtracting the necessary expenses required for self-employment of business operation from gross receipts.” (Citing Utah Code Ann. § 78B-12203(4).) After considering the relevant testimony and argument, the court found that the following were reasonable business expenses: $120 per month for “phone expenses”; $100 per month for “computer expenses”; $78 “per month for car insurance”; $254 per month for “vehicle gas and oil”; $330 per month for “vehicle maintenance and repair”; $100 per month for vehicle “licensing and registration”; $833 per month for a car payment; and $300 “per month for continuing medical education.” The court then divided all of these expenses in half, in view of the fact that there were “both business and personal uses for” them, and determined that John’s reasonable monthly business expenses were $980.   

¶78 John mounts a two-part challenge to the court’s assessment of his reasonable business expenses. First, he asserts that the court erred when it divided all of the expenses in half, including the one for “continuing medical education.” This particular challenge is unpreserved, so we review for plain error. On this point, the trial court did not plainly err. Certainly, it is no abuse of discretion—and John does not contend otherwise—to divide phone, computer, and vehicle expenses in half, since those are used partly for personal use. See Barrani v. Barrani, 2014 UT App 204, ¶¶ 15–16, 334 P.3d 994 (recognizing that expenses that are “commonly used for personal as well as business purposes,” such as a “vehicle and a cellular telephone,” may not be entirely business expenses, depending on the circumstances). And in this particular case, Accountant explained that John’s “continuing medical education” expenses included costs for travel, with other doctors, to medical conferences, and that certain expenditures associated with those trips—such as costs of “taking family” along or for “activities while you’re there”— were more appropriately classified as personal. Given these facts, we perceive no plain error in the trial court’s decision to divide the listed expenses in half.   

¶79 However, we find merit in the second part of John’s argument, in which he asserts that there exist other business expenses that the court improperly refused to subtract from his gross receipts, including the cost of medical malpractice insurance, overhead, and the cost of maintaining a medical license. Lisa does not argue that these items, in the abstract, are not proper business expenses; indeed, we observe that these expenses are “necessary to allow the business to operate at a reasonable level.” See id. ¶ 15 (quotation simplified). Instead, Lisa contends that John failed to provide the court with sufficient evidence of these expenses. We disagree.   

¶80 Evidence of these expenses came not only from John, but also from Brother, one of John’s partners in the medical practice. Brother testified that maintaining a medical license costs “around $400 or $500” each year, and that malpractice insurance costs “$8,500 a year,” or “about $700 a month.” Brother testified that, in their medical practice, overhead was “around 7 to 8 percent” of gross income. This evidence is clear, and supports John’s position that these business expenses are an essential part of his medical practice, and that they have specific costs associated with them. Moreover, these expenses are entirely business-related, and not at all personal, and thus should not be cut in half. Accordingly, we conclude that the court abused its discretion by rejecting John’s request that these reasonable business expenses be subtracted from his gross receipts in calculating his income.   

  1. John’s Medical Income and Work Expectations  

¶81 The final—and main—challenge John makes to the trial court’s computation of his income is his contention that the court’s computation, including the implied expectation that John continue to work long hours, is fundamentally at odds with the court’s custody and parent-time rulings, in which the court found that it would be in the best interest of the minor children for them to spend half of their time under John’s care. In essence, John’s argument is that, by setting his income at $900,000 annually ($75,000 monthly), the court is forcing him to continue to work sixty-plus-hour weeks, and that this will impede his ability to effectuate a 50/50 parenting arrangement.   

¶82 Not all people—and not even all anesthesiologists—work as many hours as John worked during the course of the parties’ marriage. As noted, John decided to work long hours, sometimes in excess of sixty hours in a week, in order for the family to be able to enjoy a very comfortable lifestyle. And John established a long-term and consistent pattern of working more than others in his practice group; indeed, he was the top wage-earner in his practice for twelve years running, a status that he earned by voluntarily working long hours and extra shifts. Over the last three years of the marriage, John earned $882,132, $979,787, and $906,199 from his medical practice (excluding the Farm income).   

¶83 Under Utah law, “[i]ncome from earned income sources” is typically “limited to the equivalent of one full-time 40-hour job.” See Utah Code Ann. § 78B-12-203(2) (LexisNexis 2018).9  However, “if during the time before the original support order, the parent normally and consistently worked more than 40 hours at the parent’s job, the court may consider this extra time as a pattern in calculating the parent’s ability” to earn income. See id. Where, as here, there is evidence suggesting a long-term pattern of a parent (or spouse) working extended hours, a trial court does not abuse its discretion by concluding that the parent’s (or spouse’s) income, for purposes of child support and alimony, should be calculated with the historically longer workweek in mind. See Tobler v. Tobler, 2014 UT App 239, ¶¶ 27–28, 337 P.3d 296 (affirming a trial court’s finding, based on evidence that the husband “normally and consistently worked” overtime hours, that the husband’s income should be calculated based on the longer hours). Perhaps because of this statutory and case law guidance, John does not directly challenge the court’s determination that his historical work habits justify calculating his future income based on more than a forty-hour workweek.   

¶84 Instead, John’s challenge is subtler. He acknowledges—at least impliedly—that the trial court’s income computation might have been acceptable if the court had not, at the same time, awarded him equal parent-time. In John’s view, it is the combination of the court’s income determination and its custody and parent-time orders that leads to problems; specifically, he contends that the court’s “findings are internally inconsistent” and “impossible in practice,” and that working so many hours will make him less effective as a parent. We see the matter differently.  

¶85 As an initial matter, John made a decidedly different argument in the fall of 2017, during the temporary orders phase of the case, when he needed to rebut Lisa’s argument that he should have only minimal parent-time in light of the demands of his job. At that time, John asked for temporary orders that gave each party “equal parent time with the minor children, to be arranged in advance but taking into account [John’s] work schedule, so that [John’s] parent time overlap[s] to the extent possible the blocks of time when he is not scheduled to work.” And in a supporting affidavit, John averred, “Although my work schedule varies, I know what my work schedule is going to be up to four months in advance and can schedule parent time accordingly.” During the year in which he took those positions, John earned $906,199 in income from his medical practice.   

¶86 Moreover, if anything, the time demands that will be placed on John during his parent-time have decreased since 2017. For one thing, by the time of trial, two of the three minor children were already well into their teenage years, and the youngest was eleven. And it bears noting that the two youngest children—the two who are still minors today—are now both teenagers and are proficient college-aspirant tennis players; the court might reasonably have assumed that these children are often in school, at tennis lessons, or otherwise engaged, and do not need constant supervision as would a toddler, for instance, and that, in a situation like this, John may well be able to work at least some hours even during the weeks when he has the children in his care.   

¶87 For these reasons, we do not view the trial court’s orders as necessarily inconsistent, and we do not view the tasks set before John as impossible. The trial court acted within the bounds of its discretion when it took John’s temporary orders affidavit at its word, and concluded that—given his flexible work schedule, coupled with appropriate planning, foresight, and perhaps a little help from friends and family on occasion— John was up to the challenge of working his historical number of hours while at the same time having seven nights of parent-time during each fourteen-day period.   

¶88 Moreover, although the trial court could have conceivably credited John’s later statements—that he did not intend to keep working such long hours, that working fewer hours would make him a better parent, and that the court should assess his future income according to a lighter work schedule—the court was within its discretion to be somewhat skeptical of John’s stated plans for a significant drop in income on the heels of contested divorce proceedings. Cf. Gerwe v. Gerwe, 2018 UT App 75, ¶ 31, 424 P.3d 1113 (“It was within the court’s discretion to discredit Husband’s claim that he was unable—as opposed to merely unwilling—to provide the support ordered by the court.”).   

¶89 Accordingly, we reject John’s main challenge to the trial court’s calculation of his income, but agree with John that the trial court abused its discretion by including the Farm income and excluding certain business expenses in its calculation. We remand with instructions for the court to correct these errors, although we acknowledge that their correction may or may not affect the ultimate alimony award.   

  1. Duration of Alimony  

¶90 The trial court ordered John to pay alimony to Lisa for twenty years—the duration of the parties’ marriage. John challenges that determination, contending that he should not be required to pay alimony for that long, and that the court abused its discretion by not selecting a shorter, rehabilitative time period. This argument is preserved, so we review for abuse of discretion.  

¶91 Our legislature has set an outer boundary on the length of alimony awards, mandating that, in the absence of “extenuating circumstances,” “[a]limony may not be ordered for a duration longer than the number of years that the marriage existed.” See Utah Code Ann. § 30-3-5(8)(j) (LexisNexis 2019). But there is no inner boundary on the length of an alimony award: a trial court may, in appropriate cases, order that alimony be paid for a shorter period, or may order that alimony payments taper off gradually. See Gardner v. Gardner, 2019 UT 61, ¶ 80, 452 P.3d 1134 (stating that “nothing in the [alimony] statute bars an award for a shorter duration” than the length of the marriage, and that “an alimony award for shorter than the term of the marriage should be upheld unless it results in a serious inequity evidencing an abuse of discretion” (quotation simplified)); Boyer v. Boyer, 2011 UT App 141, ¶ 14, 259 P.3d 1063 (stating that, “in the case of rehabilitative alimony, a gradually decreasing award may be appropriate”).   

¶92 Rehabilitative alimony is a remedy “intended to ease the recipient spouse’s financial adjustment period.” See Boyer, 2011 UT App 141, ¶ 15. Courts have ordered rehabilitative alimony, within their discretion, in cases where marriages are not extremely long in duration, and where the recipient spouse is of an age and in possession of employment skills that make selfsufficiency likely. Id. ¶ 17; see also Jensen v. Jensen, 2008 UT App 392, ¶¶ 17–19, 197 P.3d 117. Rehabilitative alimony can also further important societal goals; for instance, it discourages a recipient spouse’s dependency on alimony payments, and encourages self-sufficiency and independence. See Boyer, 2011 UT App 141, ¶¶ 4, 16–17. But courts risk abusing their discretion when ordering rehabilitative alimony in cases that involve long marriages and older parties. See, e.g., Mark v. Mark, 2009 UT App 374, ¶ 15, 223 P.3d 476 (concluding that a court abused its discretion by ordering rehabilitative alimony where the parties had been married for twenty-five years and the recipient spouse was fifty-two years old with “limited marketable skills and employment prospects”); Rasband v. Rasband, 752 P.2d 1331, 1333–35 (Utah Ct. App. 1988) (concluding that a court abused its discretion by ordering rehabilitative alimony where the parties had been married for thirty years).   

¶93 John and Lisa had been married for twenty years and were in their late forties when they divorced. Although Lisa has a bachelor’s degree in exercise science and a master’s degree in athletic training, she has never worked in those fields. After considering the evidence presented, the trial court ordered John to pay alimony, in the full amount without tapering, for twenty years. John challenges this ruling, asserting that it “requires him to work at a breakneck pace for the rest of his career, while simultaneously relieving Lisa of the obligation to make any progress toward self-sufficiency.”   

¶94 In this case, the trial court was presented with facts that cut both ways on the rehabilitative alimony question. On the one hand, Lisa is a competent, educated individual with marketable skills, and not so advanced in years that she would be unable to develop a career in a chosen field. But on the other hand, the parties were married for twenty years, Lisa was the primary caregiver for the children and had never worked outside the home, and the parties lived a very comfortable lifestyle based primarily on John’s income; even if Lisa ultimately procures gainful employment outside the home, the income from that job, by itself, is unlikely to be enough to allow her to enjoy anything close to the lifestyle the parties enjoyed during the marriage.   

¶95 Under the facts presented here, the trial court did not abuse its discretion in determining not to order rehabilitative alimony, and to order that John pay full alimony for a period of time equal to the length of the marriage. We therefore reject John’s challenge to the duration of the trial court’s alimony award.   

  1. Retroactive Alimony  

¶96 The trial court also ordered that its alimony award, although entered in December 2018, be made retroactive for a six-month period dating back to June 1, 2018, the date corresponding to the court’s first temporary financial order in the case. John challenges that decision in two respects. He first asserts that the court erred in making its alimony order retroactive “because the parties reached a stipulation regarding temporary orders.” Second, he contends that the retroactive award “should be reduced for all the same reasons . . . that the forward-looking alimony award should be reduced.” With regard to these challenges, we review the court’s decisions for abuse of discretion.   

  1. Stipulation 

¶97 In divorce, custody, and other domestic cases, the trial court “may order a party to provide money, during the pendency of the action, for the separate support and maintenance of the other party and of any children in the custody of the other party.” Utah Code Ann. § 30-3-3(3) (LexisNexis 2019). Such temporary orders “may be amended during the course of the action or in the final order or judgment.” Id. § 30-3-3(4). Soon after filing her petition for divorce, Lisa invoked these provisions and asked the court to enter temporary orders of support. Later, in May 2018, the court entered a temporary support order that memorialized a stipulation reached between the parties: Lisa would be able to use a joint credit card for “household expenses,” and John would pay those charges (as well as most of the parties’ bills), but Lisa would “limit her charges to $3,000 per month,” and would “charge no more attorney’s or expert fees to the card.” The parties followed that procedure for the next few months, up until trial.   

¶98 At trial, Lisa testified that the $3,000 monthly allowance turned out to be insufficient to allow her to meet her needs, and that during the temporary orders period she had been forced to “change the lifestyle from what [she] had previously enjoyed during the marriage.” She testified that she was unable to attend tennis tournaments with the children or properly care for her horses, that she could not get necessary medical treatment for herself, and that she had to “eat down [her] food storage” and depend on members of her church congregation for “a lot of meals.” The trial court credited this testimony, stating during the course of its oral findings that “the temporary orders [had] left [Lisa] almost destitute,” and at times dependent on “the bishop’s storehouse to put food on the table.”  

¶99 In its written findings, issued in December 2018, the court found that “retroactive child support and alimony should be awarded from June 1, 2018 to November 30, 2018.” In a subsequent order, following post-trial motions, the court calculated the amount of retroactive alimony owed to be $147,000. However, the court “allowed [John] to deduct any amounts he ha[d] paid for bills on [Lisa’s] behalf as he was ordered to do in the temporary order,” including “the approximately $3,500.00 per month that [Lisa] was able to charge on the joint credit card.” The court determined that John had paid “$80,927.20 . . . on [Lisa’s] behalf, so that the final remaining amount of retroactive alimony to be awarded [was] $66,072.80.”   

¶100 John challenges this aspect of the trial court’s alimony award, asserting that, because Lisa stipulated to the temporary orders arrangement, she should not now be heard to complain about its consequences, and that the parties’ “stipulation must have an effect.” We reject John’s argument.   

¶101 Trial courts have “significant discretion in fashioning temporary support during the pendency of a divorce action,” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 39, 176 P.3d 476, and, as noted, may at any time amend the orders “during the course of the action or in the final order or judgment,” Utah Code Ann. § 30-3-3(4) (emphasis added). In practice, temporary orders are often entered after only a brief hearing, where evidence—if taken at all—is taken by proffer, and are intended to be merely a rough-cut estimate of what a court might do after hearing all of the evidence at trial. Cf. Montano v. Third Dist. Court, 934 P.2d 1156, 1157–58 (Utah Ct. App. 1997) (per curiam) (acknowledging the parties’ representations that “it is a routine practice to issue temporary . . . orders based solely on proffers of witness testimony,” and noting that such a practice “is discouraged” in custody proceedings). An arrangement memorialized in a temporary order can of course be changed, in a final decree of divorce, after a court hears all of the evidence during a full trial. See id. at 1157. And this is no less true in cases where a court enters a temporary order pursuant to the parties’ stipulation. Indeed, a court asked to revisit a temporary orders arrangement after trial might even be justified in applying a higher level of scrutiny to an arrangement reached by stipulation than to one reached after a contested hearing before a commissioner. Cf. Taylor v. Elison, 2011 UT App 272, ¶ 14, 263 P.3d 448 (deciding, at least in a custody context, to view stipulated divorce decrees more skeptically than adjudicated decrees).10  Although Lisa stipulated to the temporary arrangement whereunder she would be allotted $3,000 for household expenditures, that stipulation did not bar her from testifying, several months later, that the arrangement had proven itself unworkable when viewed against the backdrop of the parties’ historical lifestyle. And the stipulation certainly did not prevent the trial court from amending the temporary order retroactively after hearing all of the evidence presented at trial.   

¶102 Trial courts have considerable discretion to amend temporary orders at any time during the proceeding; they are certainly justified in doing so in a final judgment entered after a trial in which the parties have had a full and fair opportunity to present evidence. In this situation, the court did not abuse its discretion by making its alimony award retroactive to June 2018, and thereby superseding the apparently unworkable arrangement set forth in the temporary orders. We therefore affirm the court’s determination that John should be ordered to pay alimony retroactive to June 2018.11    

  1. Reductions in Retroactive Award 

¶103 John’s second challenge to the court’s retroactive alimony award is his contention that the retroactive award “should be reduced for all the same reasons . . . that the forward-looking alimony award should be reduced.”12  We find merit in this argument. As discussed above, several of the inputs to the court’s alimony calculation—regarding some of Lisa’s needs, Lisa’s earning capacity, and certain aspects of John’s income— need to be adjusted. These adjustments will affect not only the prospective amount of alimony owed, but also the court’s calculation of how much retroactive alimony John owes. We therefore remand for a recalculation of the retroactive alimony, in light of the adjustments necessary to the overall alimony amount.   

(…continued)  

March 2018 rather than September 2018. However, John acknowledges that, as part of the court’s calculation of the retroactive alimony award, he was credited for all funds that Lisa withdrew from that account between April and September 2018. John therefore concedes that if we affirm the retroactive alimony award, then his checking account argument fails. Accordingly, because we affirm the retroactive award, we need not further address this argument.  

  

  1. Attorney Fees 

¶104 With regard to attorney fees, the court ruled that, “[b]ased on [its] rulings [regarding] division of property and debts . . . , the Court is not awarding either party his/her attorney’s fees—in that both parties will have sufficient assets and/or income to pay their attorney’s fees.” John challenges this ruling, asserting that, although the court nominally ordered each party to bear his or her own fees, the practical effect of its ruling was that “John paid both parties’ fees.” This claim was preserved, so we review for abuse of discretion.   

¶105 Prior to entry of the temporary orders, Lisa had charged nearly $80,000—and John charged nearly $40,000—in attorney and expert fees to the parties’ joint credit card, which caused the card account to “reach[] its credit limit” because John “had been unable to pay down the balance while continuing to meet the parties’ other obligations.” John ultimately borrowed $50,000 against his 401(k) to help pay off the balance. Due in part to this development, the parties agreed to include in the temporary order a provision barring Lisa from charging any more attorney and expert fees to the joint credit card, and Lisa charged no additional fees to the card after that. After trial, the court ordered each party to pay his or her own attorney and expert fees, and made no adjustment to account for the portion of Lisa’s attorney fees that John had already paid.    

¶106 John brought this issue to the court’s attention in a posttrial motion, asserting that, in essence, he had paid a substantial portion of Lisa’s attorney fees without being credited for it, and because the court had “ordered that each party should pay his or her own attorney’s fees,” “[a]n adjustment [was] needed . . . in order to make that happen.” As a result, John asked the court to treat the payments “as premature distributions of the marital estate” when formulating its retroactive alimony determination. Lisa opposed this, arguing that John was “attempting to ‘double count’ many of the same funds” by asking for the 401(k) loan to be included in the marital debt calculation, while also asking for attorney fees he paid in the past to be assigned to Lisa.”   

¶107 Ultimately, the court sided with Lisa: it refused to change its prior ruling regarding attorney fees, and declined John’s invitation to adjust the retroactive alimony amount to account for fees he had already paid. In its oral ruling, the court stated simply that it was “not going to change” its prior ruling, that it “[did not] care if [payments were made] during that retroactive time,” and that it was “not going to” give John credit for his payment of some of Lisa’s fees. In its written order, the court devoted one sentence to the issue, stating simply that it was “declin[ing] to equalize the parties’ use of marital funds for payment of attorney’s fees prior to trial,” and that it “denie[d] [John’s] motion on this point.”   

¶108 “In divorce cases, both the decision to award attorney fees and the amount of such fees are within the trial court’s sound discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 27, 335 P.3d 378 (quotation simplified). “Attorney fee awards, however, must be based on [i] evidence of the financial need of the receiving spouse, [ii] the ability of the other spouse to pay, and [iii] the reasonableness of the requested fees. And, failure to consider these factors is grounds for reversal on the fee issue.” Id. (quotation simplified). In Roberts, we “conclude[d] that the [trial] court did not adequately explain” its attorney fees award decision because, although it did make a finding about the amount of fees, the trial court “did not make any specific findings on the reasonableness of the award, [the husband’s] ability to pay, or [the wife’s] needs.” Id. ¶¶ 28–29.   

¶109 In this case, it was within the court’s discretion to make attorney fees awards to one party or another. But in order to do so, the court must first make adequate findings. See id. ¶¶ 27–29. Here, the court professed not to be making any award of attorney fees, and to be requiring each party to bear his or her own, but John has persuasively argued that he paid a significant part of Lisa’s fees without being credited for that payment. If the court wishes to award Lisa those fees, and require John to pay them, it must engage with the three-part test, and make the required findings. It cannot make such an award sub silentio, while asserting that its order asks both parties to bear their own fees.   

¶110 We therefore remand this issue to the trial court for it to clarify which path it is taking. It has two options. It can continue to insist that both parties bear their own fees, in which case it needs to make an adjustment to account for any portion of Lisa’s fees that John paid, or at least explain why no such adjustment is necessary. Alternatively, it can explicitly make a partial award of attorney fees to Lisa, in which case it needs to make appropriate findings, as set forth in Roberts.   

CONCLUSION  

¶111 We affirm many aspects of the trial court’s alimony award. In particular, we affirm the court’s decisions to award alimony for twenty years and to award retroactive alimony. We also reject John’s argument that, with respect to his future income, the court’s alimony award is inconsistent with its custody award. However, we have identified a number of errors in the court’s computation of the amount of alimony, and we have identified a potential inconsistency in the court’s handling of the attorney fees issue. Accordingly, we reverse those aspects of the court’s rulings, and remand for further proceedings consistent with this opinion.  

 

Utah Family Law, LC | divorceutah.com | 801-466-9277   

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