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Tag: ability to pay

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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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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Can I file for divorce and spousal support after being separated from my husband for 5 years?

This is an interesting question because if you have been financially independent of your spouse during your five year separation that implies that you don’t need financial support from your spouse.

Contrastingly, if for the past five years you have been destitute, have made requests of your spouse for financial support that your spouse has rejected, and have run up debts and other liabilities to meet your reasonable living expenses, then you would likely have a very strong basis for seeking alimony.

If, however, you have been separated from your spouse for five years and counting without having to rely for your financial support on a source other than your own income or other earnings in all that time, it is hard to imagine how you could make a compelling argument for deserving and alimony award.

One exceptional situation needs to be mentioned: if you have been self-supporting, but at a greatly reduced/lesser lifestyle, (i.e., you went from living at a certain level with your spouse because of your spouse’s affluence and ability to afford such a lifestyle to living more modestly on a modest income), then it may be possible for you to argue that you are entitled to alimony so that you can reach, or at least get as close as reasonably possible to, the lifestyle to which he became accustomed while married. One counter argument you could encounter (and I believe this argument would have merit) is that you have been self-supporting for so long — albeit at a lower level of income than you enjoyed before separation — that one can reasonably conclude that your change in lifestyle is no longer involuntary imposed upon you but a matter of your own personal choice.

And let’s and on a note of adding insult to injury: imagine that you had no choice but to pull yourself up by your own bootstraps after separation because your spouse refused to provide any financial support for you. Could you make some kind of argument that but for your spouse’s greedy neglect, you would have never needed to become self-supporting? In my legal opinion, the answer is: probably not. The court would not be looking to how or why you became self-supporting, and whether the circumstances under which you became self-supporting were “fair,” but only that you are now currently self-supporting.

Bottom line: if you have been living financially independent of your spouse for the past five years and counting, and if you are not living hand to mouth, it is unlikely that you will succeed in seeking and alimony award.

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

https://www.quora.com/Can-I-file-for-divorce-and-spousal-support-after-being-separated-from-my-husband-for-5-years/answer/Eric-Johnson-311?prompt_topic_bio=1

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Redden v. Redden – 2020 UT App 22 – findings, alimony, ability to pay

2020 UT App 22 – THE UTAH COURT OF APPEALS

DEBBIE ANN REDDEN, Appellee,
v.
SPENCER DEAN REDDEN, Appellant.

Opinion
No. 20180852-CA
Filed February 13, 2020

Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 164907729

Douglas L. Neeley, Attorney for Appellant
Jared L. Peterson, Attorney for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.

POHLMAN, Judge:

¶1 Debbie Ann Redden and Spencer Dean Redden divorced in February 2018. After a bench trial, the district court entered findings of fact and conclusions of law on certain reserved issues surrounding the divorce, including alimony. On appeal, Spencer[1] challenges the court’s alimony determination, arguing that the court exceeded its discretion by disallowing, for alimony purposes, his monthly expenses for student loan payments, vehicle loan payments, and credit card debt. We conclude that the court acted within its discretion in disallowing the credit card debt as a monthly expense. But we conclude that the court exceeded its discretion in disallowing Spencer’s student loan payments and both of his vehicle loan payments in its assessment of Spencer’s monthly needs on the basis that the expenses did not reflect the marital standard of living. Accordingly, we affirm in part, reverse in part, vacate the alimony award, and remand for further proceedings.

BACKGROUND

¶2 Spencer and Debbie married in March 2003. They separated in January 2016 and divorced in February 2018. In the divorce proceedings, the parties submitted to the district court several issues for resolution, including alimony.

¶3 The parties stipulated to assuming the debts each had listed in their respective financial declarations. Spencer listed as debts a federal student loan of $36,475, total credit card debt of $4,756, and total vehicle loan debt of $29,762. Spencer also listed each of these debts as a corresponding line item in his monthly expenses; he claimed as monthly expenses $374 for his student loans, $571 for his credit cards, and $762 for his vehicle loans.

¶4 At the February 2018 bench trial, the court heard evidence about the parties’ respective monthly expenses for alimony determination purposes and, for each party, addressed each claimed line-item expense, often adjusting and ruling on the propriety of the specific line item from the bench. As relevant here, the court specifically inquired about Spencer’s claimed monthly expenses for student loan debt, vehicle loans, and credit card debt.

¶5 With respect to the student loan debt, Spencer testified that the loan was for expenses associated with his bachelor’s degree in information technology, which he had completed in August 2017. He explained that the loans were taken out during the marriage, beginning in 2014, and that he would have to start paying them back within two months following the bench trial.

¶6 For the vehicle loan payments, Spencer stated that the loan payments were for two vehicles: a car, with a payment of approximately $412 per month, and a motorcycle, with a payment of about $350 per month. Spencer explained that both vehicles were marital purchases and that, while Debbie initially had the car and assumed the debt after the parties’ separation, she later asked him to take on the car and the associated debt, which he agreed to do.

¶7 Finally, as to the credit card debt, Spencer testified that the balance represented basic living essentials, such as food and gasoline, and that “a lot of [the debt] was incurred” when the parties separated and he had to furnish his new home. He also explained that he had “maintained a [credit card] balance for quite a few years” due to struggles to “make ends meet” during the marriage. However, when asked by the court whether the balance had continued “from the times when [he was] married to present” or whether the amounts “were incurred after [his] separation,” he responded generally that the balance had “fluctuated,” but he did not provide the court further detail concerning what portion of the balance, if any, had been carried forward from the marriage.

¶8 After the bench trial, the district court entered a memorandum decision and order with respect to the pending issues (the Memorandum Decision). On the issue of alimony, the court made several findings regarding the required alimony factors. See Utah Code Ann. § 30-3-5(8)(a), (e) (LexisNexis 2019)[2] (setting forth the factors the court “shall consider” in determining alimony, including the “financial condition and needs of the recipient spouse,” the “recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support,” and providing that a court generally should “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a)”).

¶9 Addressing Debbie’s financial condition, needs, and earning capacity, the court found Debbie’s monthly gross income to be $1,257, resulting, after deductions, in a monthly net income of $1,148. And after increasing or reducing certain enumerated expenses listed in Debbie’s financial declaration, the court determined that Debbie’s total adjusted expenses were $2,483 per month, which meant that she had a monthly shortfall of $1,335. See id. § 30-3-5(8)(a)(i)–(ii) (requiring a court determining alimony to consider the recipient spouse’s “financial condition and needs” as well as “earning capacity or ability to produce income”).

¶10 For Spencer, the court found his monthly gross income to be $5,680, with a net income after deductions of $4,688. Undertaking a similar adjustment to Spencer’s claimed expenses, the court set his adjusted monthly expenses at $2,421. However, in reviewing and setting Spencer’s monthly expenses, the court did not mention or appear to account for Spencer’s student loan debt, his vehicle loan debt, or his credit card debt. Rather, subtracting Spencer’s child support obligation and the adjusted monthly expenses from his net income, the court found that Spencer had an “income of $1,170” per month with which to provide alimony. See id. § 30-3-5(8)(a)(iii) (considering the “ability of the payor spouse to provide support” in determining alimony). On this basis, the court determined that Spencer should pay alimony to Debbie in the amount of $1,000 per month for thirteen years, “the time period the parties were married and lived together.”

¶11 Following the entry of the Memorandum Decision, pursuant to rules 59 and 60 of the Utah Rules of Civil Procedure, Spencer moved the court for a new trial and relief from the decision. He argued that the $1,000 monthly award to Debbie was “excessive” and that the court’s calculations with respect to his monthly expenses in particular “cannot be duplicated.” He also pointed out that the court failed to address his vehicle loan and credit card debts in its decision.[3]

¶12 The court denied the motion, issuing a supplemental decision (the Supplemental Decision). The court explained that it “correctly assessed the parties’ needs given the evidence before it” and that it had “appropriately based its decision on the marital standard of living.” With respect to the credit card debt, the court observed that the debt was alleged by Spencer “to have been incurred for family expenses,” concluding that “including this payment in assessing [Spencer’s] need would double count the expenses” and that inclusion “would be appropriate only if corresponding expenses were deducted.” As to the vehicle loan debt, the court concluded, without further explanation, that “exclusion reflects the proper determination of the marital standard of living and the vehicle needs of the parties.”

¶13 In October 2018, the court issued the decree of divorce, accompanied by findings of fact and conclusions of law that, on the issues pertinent to this appeal, largely repeated the findings and determinations it had made in both the Memorandum Decision and the Supplemental Decision. The court generally noted that during the marriage the parties “lived in a home they owned” and “had money for vehicle maintenance and gas, clothing, laundry, auto insurance, utilities, internet, health insurance, entertainment and gifts.” See id. § 30-3-5(8)(e). And the court made the same determinations as to the parties’ respective monthly incomes and expenses as it had before. It also repeated its determination that Spencer would not be “given credit for credit card payments because he incurred these debts for family expenses and to include them would double count his expenses.” And addressing the student loan and the vehicle loan payments, the court stated that Spencer would not be “given credit” for them “because the amount he listed on his Financial Declaration does not reflect the marital standard of living.”

¶14 Spencer appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Spencer argues that the district court exceeded its discretion when, in determining his alimony obligation, it disallowed a monthly expense for his student loan payments, his vehicle loan payments, and his credit card debt. “We will uphold a trial court’s alimony determination on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (cleaned up); see also Dobson v. Dobson, 2012 UT App 373, ¶ 7, 294 P.3d 591 (“We review a trial court’s award of alimony for an abuse of discretion and will not disturb a trial court’s 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.” (cleaned up)). In setting alimony, a district court exceeds its discretion if it fails to consider the statutory alimony factors set forth in Utah Code section 30-3-5(8)(a) or if the decision otherwise lacks a reasonable basis. See Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036.

¶16 Additionally, the “district court must make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 5, 449 P.3d 202 (cleaned up). “Findings of fact are adequate to support the district court’s financial determinations only when they are sufficiently detailed to disclose the steps by which the district court reached its ultimate conclusion on each issue, and follow logically from, and are supported by, the evidence.” Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023 (cleaned up); accord Taft, 2016 UT App 135, ¶ 14. We cannot affirm the district court’s alimony determination when it “fail[s] to enter specific, detailed findings supporting its financial determinations.” Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455 (cleaned up); see also Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645 (“The district court abuses [its] discretion when it fails to enter findings of fact adequate to support its financial determinations.”).

ANALYSIS

¶17 Spencer challenges the district court’s alimony determination, specifically its decision to disallow as monthly expenses payments for student loan debt, vehicle loan debt, and credit card debt. He contends that the court’s findings do not sufficiently support the alimony award and that the failure to allow a monthly expense for these debts in considering his ability to provide alimony constituted an abuse of discretion. On this basis, he asks that we vacate the alimony award.

¶18 As to the expenses associated with Spencer’s student loans and the debt for at least one of his vehicles, we conclude that the evidence does not support the court’s determination that those expenses did not reflect the marital standard of living. However, we conclude that the district court’s decision with respect to the credit card debt was proper in light of the evidence presented on that issue during trial. Thus, we affirm in part, reverse in part, vacate the alimony award, and remand for reconsideration of alimony.

I. Alimony Principles

¶19 Before addressing Spencer’s specific challenges to the alimony award, we begin by setting out the applicable principles governing the determination of alimony.

¶20 Alimony awards are generally aimed at “enabling the receiving spouse to maintain, as nearly as possible, the standard of living enjoyed during the marriage, and preventing the receiving spouse from becoming a public charge.” Anderson v. Anderson, 2018 UT App 19, ¶ 29, 414 P.3d 1069 (cleaned up); see also Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153. To that end, in crafting an alimony award, a court must consider several factors, including the “financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)–(iii) (LexisNexis 2019); accord Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); Barrani v. Barrani, 2014 UT App 204, ¶ 21, 334 P.3d 994. In assessing the parties’ needs and their respective abilities to fulfill those needs, courts generally should look to the standard of living established during the marriage. See Rule, 2017 UT App 137, ¶ 15; see also Utah Code Ann. § 30-3-5(8)(e) (instructing courts to, as a general rule, “look to the standard of living, existing at the time of separation,” in setting alimony awards).

¶21 To assist district courts in fashioning alimony awards, this court has described the proper process for setting alimony. First, the court must “assess the needs of the parties, in light of their marital standard of living.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d 591. Next, the court must determine whether the receiving spouse is “able to meet her own needs with her own income.” Id. If the court finds that the receiving spouse is “unable to meet her own needs with her own income,” the court must then assess whether the payor spouse’s “income, after meeting his needs, is sufficient to make up some or all of the shortfall between [the receiving spouse’s] needs and income.” Id.; see also Utah Code Ann. § 30-3-5(8)(a)(iii) (directing that, as part of the court’s alimony determination, it “shall consider . . . the ability of the payor spouse to provide support”); Rule, 2017 UT App 137, ¶¶ 19–20.

¶22 After undertaking this analysis, it may be that the parties’ combined incomes are simply insufficient to meet both parties’ needs as set by the marital standard of living. In such circumstances, and only after adequately conducting the above analysis, a court has the discretion to apportion the burden of the shortfall between the parties, “so long as the award is equitable and supported by the findings.” Rule, 2017 UT App 137, ¶¶ 19–22; see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 43, 402 P.3d 219 (“Because both the propriety of and the calculations necessary for equalization are tied to findings regarding the parties’ respective needs and income, a court must conduct an adequate needs analysis to properly equalize shortfall.”); Mullins v. Mullins, 2016 UT App 77, ¶ 10, 370 P.3d 1283.

II. Spencer’s Needs

¶23 Having set forth the applicable principles, we now turn to Spencer’s specific arguments regarding (A) student loan debt, (B) vehicle loan debt, and (C) credit card debt.

A. Student Loan Debt

¶24 Spencer argues that the court exceeded its discretion when it disallowed his student loan payments in calculating his monthly needs. We agree.

¶25 In setting the alimony award, the court determined that Debbie was unable to meet her adjusted needs—$2,483—with her own net income—$1,148. It therefore proceeded to consider whether Spencer had the ability to provide alimony after meeting his own needs.

¶26 A payor spouse’s debt obligations (even those pertaining to student loans) are recognized needs fairly affecting the payor spouse’s ability to provide alimony. See Willey v. Willey, 866 P.2d 547, 551–52 (Utah Ct. App. 1993) (instructing the court on remand that once it reallocated a marital debt, it should then “consider [the] debt when it reexamine[d] the alimony award on remand, because [the] debt has a direct bearing on” the recipient spouse’s ability to meet her own needs and the payor spouse’s ability to provide alimony); see also Connell v. Connell, 2010 UT App 139, ¶ 12, 233 P.3d 836 (”An adequate analysis of the factor regarding ability to pay must do more than simply state the payor spouse’s income. The court must also consider the payor spouse’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (cleaned up)); Rehn v. Rehn, 1999 UT App 41, ¶ 10, 974 P.2d 306 (same).

¶27 The court declined to allow Spencer’s student loan payments as monthly expenses because it determined that the expense amount did not reflect the marital standard of living. The court did not include additional findings with respect to the student loans or further explain its decision to disallow them. Without more, we are unable to discern the steps by which the court reached this determination, particularly where the only evidence presented at trial is that the student loans were obtained during the marriage. See Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023; Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80 P.3d 153.

¶28 In his financial declaration, Spencer included a list of his monthly expenses, and he listed $374 as the monthly expense for his student loan debt. At trial, he testified that the student loans were taken out during the marriage, that he had recently finished his bachelor’s degree in information technology, that his total student loan debt associated with his degree was “around $36,000,” and that the loan payments were due to start within the next two months. Debbie offered no evidence refuting Spencer’s testimony on these points.

¶29 Based on this evidence, Spencer’s student loan payments seem to be an expense consistent with the marital standard of living. The evidence demonstrated that the parties’ marital standard of living included incurring debt to pay for education, even if repayment of that debt had been temporarily deferred. See Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153 (explaining the general rule that “alimony should be based upon the standard of living the parties established during the marriage,” which “requires a court to determine the parties’ needs and expenses as an initial matter in light of the marital standard of living rather than, for example, actual costs being incurred at the time of trial”).

¶30 Further, Spencer was assigned responsibility for the entire student loan debt, which, given its size, would affect Spencer’s ability to provide alimony for a number of years. He explained that within two months of the trial he would be required to begin making monthly payments of $374 on the debt. And there was no suggestion from the court during the trial or in its findings that it did not consider Spencer’s account of the debt to be credible. Indeed, there was no evidence before the court suggesting that the loan obligation was not legitimate or that Spencer would not be required to shortly begin repaying it on a monthly basis for a considerable period of time. See Anderson v. Anderson, 2018 UT App 19, ¶ 32, 414 P.3d 1069 (explaining that anticipated monthly expenses are proper to factor into an alimony needs analysis where they reflect the standard of living established during the marriage); Willey, 866 P.2d at 551–52 (concluding that the trial court should consider a marital debt when it reexamined alimony, as it had “direct bearing” on the parties’ needs and resources).

¶31 Thus, the evidence before the court suggested that Spencer’s student loan debt was a legitimate obligation—one incurred during the parties’ marriage—that, within two months of the trial, would become a regular expense directly affecting Spencer’s ability to pay alimony. Without more we are unable to trace the steps through which the court determined that the impending student loan payments were not expenses based on the marital standard of living. See Paulsen, 2018 UT App 22, ¶ 17; Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 11, 397 P.3d 645 (vacating the district court’s ruling with respect to a property division where this court was unable to trace the steps through which the district court reached its conclusion). We therefore reverse the court’s ruling on this issue, remanding to provide the court the opportunity to reconsider its decision to disallow the expense in light of the preceding discussion and to enter adequate findings supporting the ruling it makes.

B. Vehicle Loan Debt

¶32 Spencer next argues that the court exceeded its discretion when it disallowed two vehicle loan payments as monthly expenses affecting his ability to provide alimony. For similar reasons as those discussed with respect to Spencer’s student loan payments, we conclude that the court exceeded its discretion in disallowing both of the vehicle loan payments as a monthly expense affecting Spencer’s needs and his ability to provide alimony.

¶33 The court determined that, like the student loan payments, the vehicle loan payment amounts did “not reflect the marital standard of living” and the “vehicle needs of the parties.” The court provided no other findings or further explanation supporting this determination.

¶34 Without more explanation from the court, its determination on this issue is difficult to reconcile with the evidence presented at trial—at least as to the allowance of a monthly expense for one of the vehicle loan payments. The evidence presented at trial suggested that the vehicles were purchased during the marriage through loans. In his financial declaration, Spencer included a line item of $762 for monthly car loan expenses, and at trial, Spencer testified that the listed amount represented a combined total for a monthly car loan payment and a monthly motorcycle loan payment—about $412 for the car and about $350 for the motorcycle. He also stated that both vehicles were purchased during the marriage through loans, with Debbie specifically acknowledging that she was obligated on the car debt.

¶35 Further, the evidence suggested that it was typical during the marriage for each party to make use of one of the two vehicles. For example, at the time of their separation, each party assumed possession of (and the associated debt on) one of the two vehicles for their separate use. Indeed, as to the car specifically, Spencer explained that when the parties initially separated, Debbie had possession of the car and had assumed the debt (while he retained the motorcycle), but that Debbie later asked him to take the car and the debt, which he agreed to do. And Debbie did not provide evidence otherwise drawing Spencer’s testimony on these points into question. In other words, all the evidence presented on this issue reasonably suggested that the parties’ marital standard of living included each party having use of at least one of the two vehicles during the marriage, both of which were subject to associated loan obligations incurred during the marriage. See Anderson v. Anderson, 2018 UT App 19, ¶ 32, 414 P.3d 1069 (concluding the court properly included a car loan payment in the receiving spouse’s needs where the evidence established that during the marriage the parties’ basic needs included a car for the receiving spouse). And there is no indication in the court’s findings that it disbelieved the parties’ testimony about vehicle use, or the legitimacy or the amount of the debt on either vehicle.

¶36 Moreover, as with the student loan debt, Spencer was assigned the vehicle loan debt. And as explained, all else being equal, marital debts generally constitute legitimate expenses affecting a payor spouse’s needs and ability to provide alimony to the receiving spouse. See Connell v. Connell, 2010 UT App 139, ¶ 12, 233 P.3d 836 (“An adequate analysis of the factor regarding ability to pay must do more than simply state the payor spouse’s income. The court must also consider the payor spouse’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (cleaned up)); Willey v. Willey, 866 P.2d 547, 551–52 (Utah Ct. App. 1993) (explaining that allocated marital debts should be included in assessments of the parties’ needs and abilities to provide alimony).

¶37 Thus, as with the student loan debt, without additional explanation, we are unable to sustain the court’s decision to disallow both vehicle loan payments from Spencer’s monthly expenses. See Paulsen v. Paulsen, 2018 UT App 22, ¶ 17, 414 P.3d 1023. As a result, we reverse the court’s ruling on this issue and remand for reconsideration and entry of adequate findings.

C. Credit Card Debt

¶38 Finally, Spencer argues that the court exceeded its discretion by failing to include his credit card debt in its alimony calculations, claiming that it was reasonably incurred debt “calculated upon the standard of living enjoyed during the marriage.” In this instance, we disagree. As explained below, Spencer’s testimony on this issue was equivocal at best and ultimately failed to provide the court a reasonable basis to conclude the debt should have been included as a separate monthly expense. Accordingly, we affirm the court’s decision on this point.

¶39 In his financial declaration, Spencer listed a monthly expense of $571 for credit card debt. During the hearing, the court questioned Spencer about that debt. Spencer informed the court that he carried a total credit card balance of about $4,700. The court asked Spencer “[w]hat kind of items” he put on his credit card. Spencer responded that he put items like food and gasoline on it, but explained that “a lot of [the debt] was incurred” for replacement household items when the parties separated. The court noted that expenses for food and gasoline were already listed as separate monthly expenses in Spencer’s financial declaration, and it asked Spencer whether his total credit card balance had “continued all the way from the times when you were married to present” or whether his “credit card bills ever reduced down and these amounts were incurred after your separation and you’ve just been carrying the balance.” Spencer responded that he thought he had “maintained a balance for quite a few years” but that his balance had “fluctuated.” When pressed by the court to identify what portion of his present balance he had been carrying since the marriage, rather than provide the court a definite (or an approximate) number, Spencer responded in general terms, stating that “the whole time [the parties] were married [they] struggled to make ends meet.” Ultimately, the court disallowed a monthly expense for the credit card debt because it determined that Spencer had “incurred these debts for family expenses and to include them would double count his expenses.”

¶40 The court did not exceed its discretion in declining to include the credit card debt as a monthly expense in its assessment of Spencer’s needs and ability to provide alimony. While Spencer included the $571 monthly payment as a line-item expense, he did not provide the court with a reasonable basis from which to determine whether the claimed monthly expense (or the debt underlying it) represented needs distinct from those already accounted for (such as food or gasoline), or whether it represented a purely marital debt Spencer had assumed and carried forward. Indeed, when asked at trial to clarify what portion of the balance he had been carrying from the time of the marriage (as opposed to that representing Spencer’s other expenses), Spencer was unable to do so and instead only generally responded that the parties had struggled to make ends meet during the marriage and that the credit card balance had “fluctuated” through the years. See Taft v. Taft, 2016 UT App 135, ¶¶ 16–26, 379 P.3d 890 (concluding that the trial court’s determination with respect to the payor spouse’s financial resources was not error where the evidence at trial “largely left [the court] to its own resources to untangle complex financial issues,” explaining that in such circumstances “the presumption of validity we afford to a trial court when it adjusts the financial interests of parties to a divorce is at its most robust”). Further, Spencer himself conceded that some of the expenses underlying the anticipated ongoing debt included items such as food and gasoline—expenses which, as the court noted, had already been accounted for in Spencer’s monthly expenses.

¶41 Stated another way, Spencer’s testimony with respect to the credit card debt fairly suggested to the court that, rather than representing an expense reasonably incurred during the marriage, the debt was instead the product of a mechanism used to pay various expenses both during and after the marriage, including those (as Spencer conceded) already accounted for in the court’s needs analysis. See Barrani v. Barrani, 2014 UT App 204, ¶ 27, 334 P.3d 994. In these circumstances, where the evidence before the court did not provide a reasonable basis to conclude that the debt was a marital debt apart from needs already factored in, the court acted within its discretion by declining to include the debt as a separate monthly expense in its evaluation of Spencer’s ongoing needs and ability to pay alimony.[4]

CONCLUSION

¶42 We conclude that the district court was within its discretion in declining to include the credit card debt as part of Spencer’s monthly needs. Nevertheless, because the basis for the court’s disallowance of the student loan and both vehicle loan payments is not apparent from the evidence or the court’s findings, we conclude that the court exceeded its discretion in excluding them from its assessment of Spencer’s monthly needs. Accordingly, we reverse the court’s ruling on those two issues, vacate the alimony award, and remand to the district court to reevaluate its alimony determinations and award consistent with this opinion.[5]

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

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[1] Because the parties share the same last name, we refer to them by their first names for clarity, with no disrespect intended by the apparent informality.

[2] Because the 2018 amendments to the relevant portions of Utah Code section 30-3-5 were stylistic, we cite the current version for convenience.

[3] In his rule 59 and 60 motion, Spencer did not mention the student loans.

[4] Spencer also generally contends on appeal that the court’s alimony award does not follow logically from the evidence. Our review of the court’s findings suggests that some of the court’s alimony calculations are difficult to reconcile with its stated findings. For example, while the court found that Spencer’s adjusted needs were $2,421, that figure does not appear to add up when all of the court’s stated adjustments to Spencer’s claimed needs are included in the calculations. In any event, because we have determined that the court exceeded its discretion in disallowing the student loan and both of the vehicle loan payments as monthly expenses, the court will be required to reconsider its alimony determinations and make additional findings supporting its ultimate award. In doing so, on remand the court should reassess and recalculate Spencer’s needs and generally “conduct an appropriate [alimony] reanalysis, which may include consideration of income equalization if, in the end, [Spencer’s] and [Debbie’s] expenses ultimately exceed the available income.” See Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994; see also Allred v. Allred, 797 P.2d 1108, 1112 (Utah Ct. App. 1990) (“We do not intend our remand to be merely an exercise in bolstering and supporting the conclusion already reached.”).

[5] Debbie requests attorney fees and costs under rule 33 of the Utah Rules of Appellate Procedure. Rule 33 permits an appellate court to award “just damages, which may include . . . reasonable attorney fees, to the prevailing party” when it determines that the appeal taken was “frivolous or for delay.” Utah R. App. P. 33(a). Damage awards under rule 33 are reserved for only “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51, 416 P.3d 487 (cleaned up). Spencer has partially prevailed, and his appeal therefore does not present a frivolous case. Accordingly, we reject Debbie’s request.

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Burggraaf v. Burggraaf – 2019 UT App 195 – imputing income, vacating alimony

2019 UT App 195

THE UTAH COURT OF APPEALS

CAROL BURGGRAAF, Appellee,

v.

BRIAN JOSEPH BURGGRAAF, Appellant.

Opinion No. 20180405-CA

Filed November 29, 2019

Second District Court, Ogden Department

The Honorable Camille L. Neider

No. 154902227

Julie J. Nelson, Erin B. Hull, and Benjamin G. Larsen, Attorneys for Appellant

Suzanne Marelius, Attorney for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

APPLEBY, Judge:

¶1 In April 2018, Brian Joseph Burggraaf and Carol Burggraaf divorced after nearly twenty-two years of marriage. Following a bench trial, the district court entered findings of fact and conclusions of law and granted a decree of divorce. Joseph[1] contends the court erred when it (1) imputed income to him for the purpose of calculating child support and alimony, (2) determined he owed unpaid child support, (3) found the majority of his student loans to be separate debt, and (4) set his budget for the purpose of calculating alimony. Joseph also contends the court’s overall property distribution was inequitable. We affirm in large part but vacate the modest alimony award.

BACKGROUND[2]

Education and Work History

¶2 Joseph and Carol married and had five children. A few years into the marriage, Joseph decided to pursue a medical degree and the family moved to Colorado for his studies. Joseph has a learning disability that hinders his ability to “process[] new information,” and as a result he struggled academically during medical school. With testing accommodations, he was able to pass the first two medical board exams, but only after attending a tutoring program in Illinois. The parties agree that it cost approximately $4,000 each time Joseph attended the program, but they disagree as to whether the medical school or Joseph’s student loans paid for it, though Joseph offered no evidence to show the medical school had paid for the program. Joseph graduated with a medical degree and approximately $260,000 in student loan debt.

¶3 After graduating from medical school, Joseph did not obtain a full-time residency but was able to secure a temporary position in the state of Washington. He was not offered a permanent position there and was unemployed for one year. Joseph returned to the Illinois tutoring program as a preemptive measure for the third and final board exam, passage of which is required to become a licensed practicing physician. Although he finished the tutoring program, Joseph did not immediately take the exam. Instead, he obtained another temporary residency in Georgia but was fired after thirteen months. Joseph then took the final board exam and failed. He returned to Illinois for the tutoring program but ultimately did not retake the exam because he decided he “would not likely pass.” After considering these facts, the district court determined Joseph “chose to abandon his pursuit of work in the medical field.”

¶4 During Joseph’s medical school and residency pursuits, Carol was “mostly a stay at home mother” who occasionally taught piano lessons to earn extra money. At trial she testified that the family’s frequent moves made it difficult for her to maintain a consistent client base for these lessons. While Joseph was in medical school and residency, the family received government and charitable assistance to make ends meet. At the time of trial, Carol earned approximately $1,100 per month.

¶5 Since deciding to forgo becoming a licensed physician, Joseph’s employment history was sporadic. He was a substitute teacher earning $82 per day for a short time before starting his own business funded by a $16,500 loan from his father. The business failed after a few months; Joseph recouped the investment, but he earned nothing more. He then took seasonal contracting work, earning between $1,863 and $2,900 per month for six months. After that, he sold insurance for a few months; in his “best month” he earned about $900. At the time of trial, Joseph was earning $1,200 per month at a river “tubing” business, working ten-to-twenty hours per week during the off-season and seventy-to-eighty hours per week in the summer. Joseph testified that he also was attending school in pursuit of a master’s degree, which put his student loans in deferment.

The Divorce

¶6 The parties separated following a domestic violence incident, and Carol was granted temporary custody of their five children. Joseph later pled no contest to the criminal charges and was convicted of a class B misdemeanor.[3] Approximately six months later, Joseph began paying Carol $200 per month for child support, which he calculated on his own without a court order.

¶7 The divorce was finalized three years after the date of separation following a four-day bench trial. After hearing evidence from both parties, the court determined Joseph was willfully underemployed and imputed his income for the purposes of calculating child support and alimony, granted Joseph and Carol joint physical and joint legal custody of the children, determined Joseph owed Carol unpaid child support, found the majority of Joseph’s student loans to be separate debt, and awarded Carol alimony. The court also distributed the marital property and debts, accounting for offsets and credits as necessary.

Income Imputation

¶8 Both parties asked the district court to impute the other’s income because each claimed the other was willfully underemployed and his or her claimed income did not reflect his or her employment potential.

¶9 The court determined Carol was not willfully underemployed and, using her previous three years’ tax returns, imputed to her a monthly salary of $1,750. But the court found Joseph was willfully underemployed and had “substantially undermined the financial stability” of the family. The court noted Joseph’s history of being secretive about his finances and said he had “lacked candor with [Carol] and the Court.” The court found it significant that Joseph did not “pursue[] employment associated with his medical degree” and that his “choices of employment [were] significantly different, without believable explanation, depending on if the parties were together or separated.” Further, Joseph did not provide the court with information about “all of his financial accounts” and “ha[d] been untruthful about the true nature of his income and assets.” Joseph also failed to provide evidence of “his current paycheck being deposited.”

¶10 Although Carol asked the court to impute a medical doctor’s salary to Joseph, the court declined to do so, as it was too speculative. Because neither party presented evidence to show what a person in Joseph’s situation—holding a medical degree but not being a licensed physician—could earn in the local area, the court was left to cobble together an average monthly income using Joseph’s earnings when he owned his business and did contracting work as “the most credible evidence of [his] potential income.” The court found it “equitable and just to impute” to Joseph a monthly income of $3,421.

Child Support and Child Custody

¶11 The district court granted Carol and Joseph joint physical and joint legal custody of their five children. In its order, the court gave the two eldest children “broad discretion to exercise parent time in whatever amount they fe[lt was] appropriate with either parent,” although they were “not obligated to exercise said parent time.” The court also recommended the three eldest children “participate in reunification therapy” with Joseph, which they “may attend if they so desire but will not be forced.” With regard to the three youngest children, the court gave Joseph overnight parent-time every other weekend and one weeknight every other week and, during the other weeks, one non-overnight midweek visit. Carol was given “all other regular parent time not awarded to” Joseph, with the parties sharing statutorily prescribed holiday time and summer vacation.

¶12 In determining Joseph’s child support obligation, the court acknowledged the parties stipulated to joint physical custody but noted Carol was in reality the “primary custodial parent” and thus “responsible for all of the day-to-day out-of-pocket expenses for the children while they are with [her].” Joseph also testified he never had more than every other weekend with the two eldest children and Carol testified their middle child “often chose[] to do other things” than stay with him. Although Joseph calculated his child support obligation on his own to arrive at his $200 monthly figure, he failed to take into account the fact that only the two youngest children were with him for 142 nights, or more than thirty percent of the year.[4] Because of this, the court used the sole custody worksheet to determine Joseph’s child support obligation.

¶13 The court gave Joseph credit for paying $200 per month (a total of $4,847.50) but, because it decided Joseph’s child support obligation was actually $1,138 per month during that period, he owed Carol more than $40,000 in unpaid child support.

Student Loans

¶14 At trial, Joseph argued his student loans, which were “in excess of $260,000,” should be considered a marital debt. He claimed only $59,551.34 of the money was used for medical school tuition and the rest was used for family expenses. He testified that the medical school paid for all books, laboratory coats, and equipment, such as stethoscopes. Carol denied this and testified that not only was the family using government assistance and charitable donations to pay their living expenses, but Joseph kept the money from his student loans in a separate account to which Carol had no access. Evidence also showed Joseph incurred “extra costs” such as “equipment, study aids, tutoring resources and [the Illinois] preparation course based on his perceived need due to his processing/learning disorder that were above and beyond the tuition expenses.” To dispute this, Joseph offered into evidence bank statements from two months showing a total of $3,308 in student loan money was deposited into the couple’s joint account, which was used for “living expenses, to pay the rent . . . utility bills . . . [and] kid expenses.”

¶15 The district court determined Joseph’s student loan debt was his separate obligation, with the exception of the $3,308 deposit into the joint checking account. In making this determination, the court found Joseph was not “credible in his representation that of $260,000 in student loans, only 25% was needed for actual school related costs.” The court noted Joseph “is the only one that may ever receive any benefit of his medical degree if he ever chooses to utilize it” and that he “solely decided to abandon his plans to be a licensed medical doctor.” Because of this, the court concluded “it would be unjust to require” Carol to share in the responsibility for the student loans.

Alimony

¶16 In preparation for trial, Carol and Joseph each submitted to the court estimated monthly budgets. Joseph’s total monthly budget was $4,706 and included a line item for “education (self)” of $1,500. Carol’s monthly budget was $5,476, including a line item for “extra-curricular activities (children)” of $850.

¶17 Each testified extensively about their monthly expenses. Joseph did not produce documentation to support his contention that he paid $1,500 per month for his current educational pursuits. But he testified that his medical school student loans were in deferment because he was attending school. The parties each testified that, during the marriage, they struggled financially. At one time, they lived with Joseph’s parents, and they often received institutional charity, government aid, and help from their families.

¶18 In its findings of fact and conclusions of law, the district court adjusted Carol’s budget and removed anything it found to be “discretionary and not reasonable necessary expenses,” including the children’s extra-curricular activities. The court determined Carol’s reasonable monthly budget to be $2,855, which, after calculating child support and her imputed income, left “her with a shortfall of $86 per month.”

¶19 The court declined to give Joseph a line item for his student loans because they were in deferment and he was not making payments on them. He also did not get a line item for his current educational expenses. The court said it omitted these items from Joseph’s submitted budget as discretionary and unnecessary “[b]ased on the testimony of the parties and the verifying documents presented at trial,” noting “none of [Joseph’s] documents reflect any student-aid, loans[,] or other assistance or expenses related to his current course of study” and Joseph “claimed to be paying approximately $1,500 per month in educational expenses for himself . . . with no documentation.”

¶20 In determining Joseph owed Carol alimony, the court considered:

[T]he financial condition and needs of [Carol], [her] earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for the children, the length of the marriage, whether [she] has custody of the minor children requiring support, and whether [she] directly contributed to any increase in [Joseph’s] skill by enabling [him] to attend school during the marriage.

The court found each factor supported an award of alimony. The court also noted “there was credible evidence that [Joseph] knowingly and intentionally caused physical harm to [Carol] and [Joseph] substantially undermined the financial stability of” the family, which the court said further supported the alimony award. Because the court imputed a monthly income of $3,421 to Joseph, after subtracting what it deemed his reasonable monthly expenses, the court determined he had an excess of $446 per month.

¶21 Using the budgets the court set and the parties’ imputed income, the court determined Joseph had an unpaid alimony obligation of $5,580, to be deducted from his share of the proceeds generated from the sale of their house, a marital asset. The court also determined Joseph’s ongoing alimony obligation to Carol would be $86 per month to account for her shortfall.

Property Distribution

¶22 Joseph and Carol had a marital home that they sold before the divorce for $205,374.05, the proceeds of which were kept in a trust account. The district court began the property division by allocating half of the proceeds to each party. It then determined the value of certain items of disputed property and to whom the items should be awarded. As it did this, the court gave the non-receiving party an offset from the recipient’s house proceeds. For example, Carol was awarded a grand piano, valued at $11,907, and Joseph was thus awarded a $5,953.50 offset from Carol’s share of the house proceeds. The court used this same method to divide the marital debts and to reimburse Carol for half of the children’s medical, dental, and orthodontic bills she had incurred on her own. Because the court found Joseph owed Carol unpaid child support and unpaid alimony, those amounts also were deducted from his share of the house proceeds. In addition to his student loan debt, Joseph was deemed solely responsible for the $16,500 loan from his father and $4,000 he had charged on the joint credit card for attorney fees related to his criminal case. The court divided the remaining debts equally.

ISSUES AND STANDARDS OF REVIEW

¶23 Joseph raises five issues on appeal. First, he claims the district court’s imputation of his income to calculate his child support and alimony obligations was in error because the court failed to apply the statutory guidelines. “We review the [district] court’s interpretation of statutory requirements for correctness.” Busche v. Busche, 2012 UT App 16, ¶ 7, 272 P.3d 748. The court’s ultimate imputation of income is reviewed for abuse of discretion. Pulham v. Kirsling, 2019 UT 18, ¶ 41, 443 P.3d 1217.

¶24 Second, Joseph contends the district court erred when it calculated his child support obligation and found he owed unpaid child support. “Because [district] courts have broad discretion to award child support, we will not disturb such decisions absent an abuse of discretion.” Reller v. Argenziano, 2015 UT App 241, ¶ 15, 360 P.3d 768 (quotation simplified).

¶25 Third, Joseph contends the district court erred when it determined the majority of his student loan debt to be his separate obligation. “There is no fixed formula for determining the division of debts in a divorce action. We require only that the district court’s allocation of debt be based on adequate factual findings. And we will not disturb those findings absent an abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 139 (quotation simplified).[5]

¶26 Fourth, Joseph alleges the district court erred when it set his budget for the alimony calculation. District “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.” Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036 (quotation simplified).

¶27 Finally, Joseph claims the district court’s overall distribution of property is inequitable. District courts have “considerable discretion” in this area as well, and we will uphold the district court’s decision concerning property distribution “unless a clear and prejudicial abuse of discretion is demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d 1113 (quotation simplified).

ANALYSIS

I. Income Imputation

¶28 Joseph contends the district court erred when it imputed his income, alleging the court did not follow Utah Code section 78B-12-203 regarding (1) gross annual income, (2) self-employment income, and (3) the factors for imputing income. Income may be imputed to a party if, “in contested cases, a hearing is held and the judge . . . enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2018).[6] Because the parties each wanted the other’s income imputed, the district court heard evidence related to their incomes.

A. Gross Annual Income

¶29 Utah Code section 78B-12-203 establishes the method by which district courts may impute gross income. Section 78B-12-203(5)(a) directs courts, “[w]hen possible,” to compute income “on an annual basis and then recalculate[] to determine the average gross monthly income.” As Joseph points out, “courts frequently average several years of income.” (Citing Taft v. Taft, 2016 UT App 135, ¶ 17, 379 P.3d 890; Tobler v. Tobler, 2014 UT App 239, ¶¶ 8, 28, 337 P.3d 296; Dobson v. Dobson, 2012 UT App 373, ¶ 2, 294 P.3d 591.) He claims the court erred because it took his “few highest earnings months out of the last several years and made that the imputation number.” (Quotation simplified.) But this does not necessarily constitute error. The statute says courts must compute an annual income “when possible.” Utah Code Ann. § 78B-12-203(5)(a) (emphasis added). Because Joseph had not held a consistent job and failed to provide “copies of all of his financial accounts,” proof of his current income being deposited, or his tax documents (even after the court requested them), it was well within the court’s discretion, under the circumstances, to impute Joseph’s income as it did, and doing so did not constitute a “misunderstanding or misapplication of the law.” Anderson v. Anderson, 2018 UT App 19, ¶ 19, 414 P.3d 1069 (quotation simplified); see also Dole v. Dole, 2018 UT App 195, ¶ 7, 437 P.3d 464 (upholding imputation when “the actual income of [a spouse] is impossible to determine due to [his or her] dishonesty to [the district court], to [his or her] unaccountable income, and to his [or her] failure and refusal to obtain traditional employment” (quotation simplified)). Thus, we do not disturb the court’s imputation of Joseph’s income by averaging his monthly income from owning his own business and performing contracting work.

B. Self-Employment Income

¶30 Joseph next argues the district court failed to follow statutory procedures for imputing income for a self-employed individual. If a party is self-employed or operates his or her own business, Utah law directs courts to “subtract[] necessary expenses required for self-employment or business operation from gross receipts.” Utah Code Ann. § 78B-12-203(4)(a). Joseph started his own business with a $16,500 loan and operated it for three months, during which time he recouped the investment but earned nothing more. When imputing his income, the district court divided $16,500 by three and determined Joseph was capable of earning $5,500 per month. Joseph argues this was in error because he “earned nothing” during that period after subtracting necessary business expenses, which he identified as a computer, scanner, insurance, and travel. But Joseph did not provide any evidence of business expenses, and the court recognized his history of being “secretive about his finances” and his lack of candor. The court merely used this figure as a “high water mark” as evidence of his “potential income.” In these circumstances, the court’s decision was not an abuse of discretion.

C. Statutory Factors

¶31 Finally, Joseph asserts the district court failed to follow the factors identified in Utah Code section 78B-12-203(8)(b). A court may not impute income to a party in contested cases unless “a hearing is held and the judge . . . enters findings of fact as to the evidentiary basis for the imputation.” Id. § 78B-12-203(8)(a). The court “shall” base the imputation on ten factors, “to the extent known.” Id. § 78B-12-203(8)(b). These factors are “(i) employment opportunities; (ii) work history; (iii) occupation qualifications; (iv) educational attainment; (v) literacy; (vi) age; (vii) health; (viii) criminal record; (ix) other employment barriers and background factors; and (x) prevailing earnings and job availability for persons of similar backgrounds in the community.” Id.

¶32 Joseph claims the district court “failed to acknowledge the factors that are most important here,” namely employment opportunities, work history, health, criminal record, other employment barriers and background factors, and prevailing earnings and job availability for persons of similar backgrounds in the community. But the record is clear that the court did consider these factors; the factors simply did not weigh in Joseph’s favor. For instance, Joseph argues the court should have considered his learning disability and criminal record, which it dId. The court found Joseph “still very employable even considering those obstacles” and pointed to Joseph’s own testimony, which “emphasized his ability to work hard, long hours and across many fields of employment.” Joseph did not provide support for his assertion that his class B misdemeanor was the reason he could not obtain more lucrative employment. The court also considered Joseph’s work history. It noted his “choices of employment have been significantly different, without believable explanation, depending on if the parties were together or separated” and found that “his current and historical income during the parties’ separation is a deliberate attempt to minimize his financial obligations.” It also found it incredible that Joseph—an individual with a medical degree—was earning “barely more than minimum wage.” Thus, the record shows the court considered the statutory factors, and the conclusions it drew from its consideration of them were therefore well within its broad discretion.

II. Child Support

¶33 Joseph next argues the district court erred when it (1) used the sole custody worksheet to calculate his child support obligation and (2) determined he owed Carol unpaid child support. For the reasons detailed below, these arguments fail.

A. Sole Custody Worksheet

¶34 In Utah, “child support obligations are generally calculated using a worksheet in cases of joint physical custody. Moreover, for purposes of calculating child support, the designation of ‘joint physical custody’ or ‘sole physical custody’ is not as important as whether the custody arrangement exceeds the statutory threshold for joint physical custody.” Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (quotation simplified). District courts are given broad discretion in decisions regarding child support. Anderson v. Anderson, 2018 UT App 19, ¶ 21, 414 P.3d 1069. If a court deviates from the statutory guidelines, it must make a finding that following them “would be unjust, inappropriate, or not in the best interest of a child.” Gore v. Grant, 2015 UT App 113, ¶ 13, 349 P.3d 779 (quotation simplified).

¶35 The district court noted Carol and Joseph had agreed upon joint physical custody, but it nevertheless used the sole custody worksheet to determine Joseph’s child support obligation. The court supported its determination by making findings that Carol actually had the three eldest children overnight at her house for more than 70% of the time. Joseph’s own testimony supports this determination: only the two youngest children spent a standard parent time schedule with him. Thus, Carol had sole physical custody—defined in terms of overnights, see Utah Code Ann. § 78B-12-102(15) (LexisNexis 2018)—of three of the children, and the parties shared joint physical custody of two of the children. Under these unique circumstances, we see no abuse of discretion in the district court’s decision to apply the sole custody worksheet.

B. Unpaid Child Support

¶36 Joseph also claims the district court erred when it found he owed thirty-six months’ worth of unpaid child support, based upon his imputed income, dating back to the filing of the divorce petition. He argues the court was without authority to ascribe unpaid support to him retroactively because Carol never asked the district court to enter a temporary order establishing the appropriate amount of child support to be paid during the pendency of the divorce case. But Joseph has not identified any statute or caselaw to support his position. See Osborne v. Osborne, 2016 UT App 29, ¶ 21, 367 P.3d 1036 (“Where the contentions on appeal are asserted without the support of legal reasoning or authority, this court will not assume the appellant’s burden of argument and research.” (quotation simplified)). Moreover, “child support is a basic and unalienable right vested in the minor,” Anderson, 2018 UT App 19, ¶ 39 (quotation simplified), and “[e]very child is presumed to be in need of the support of the child’s mother and father. Every mother and father shall support their children,” Utah Code Ann. § 78B-12-105(1) (LexisNexis 2018). Joseph was aware of his duty to support his children, as evidenced by his $200 monthly payments to Carol. Simply because he chose an arbitrary—and low—amount does not absolve him of the responsibility to fully support his five children.

¶37 Because Joseph failed to point us to statutory or other authority to instruct us otherwise, we decline to conclude that the district court abused its discretion in awarding Carol unpaid Burggraaf v. Burggraaf 20180405-CA 17 2019 UT App 195 child support, dating back to the date the divorce petition was filed, even in the absence of a temporary order.

III. Student Loans

¶38 Joseph challenges the district court’s determination that the majority of the student loan debt was his separate obligation. “Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other . . . contracted or incurred during the marriage, except family expenses.” Utah Code Ann. § 30-2-5 (LexisNexis 2018). “There is no fixed formula for determining the division of debts in a divorce action. We require only that the district court’s allocation of debt be based on adequate factual findings. And we will not disturb those findings absent an abuse of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 139 (quotation simplified).

¶39 We see no abuse of discretion in the court’s finding that, in these unique circumstances, the majority of the student loan debt should be considered Joseph’s separate obligation. The court determined that Joseph alone had made the decision to “abandon his plans to be a licensed medical doctor” and that he should therefore be responsible for repaying the vast majority of the student loans associated with obtaining his medical degree. The court supported its conclusion by reviewing the parties’ testimonies about the loans and determining Carol to be the most credible. “Credibility determinations are within the province of the [district] judge, who is uniquely equipped to make factual findings based exclusively on oral testimony due to his or her opportunity to view the witnesses firsthand, to assess their demeanor and to reconsider their testimonies in the context of the proceeding as a whole.” Kidd v. Kidd, 2014 UT App 26, ¶ 34, 321 P.3d 200 (quotation simplified).

¶40 The court did not find Joseph’s testimony about using approximately $200,000 of his student loans for family expenses credible. Joseph provided no evidence to support his claim, other than two bank statements showing $3,308 was deposited into their joint account; the rest was kept in a separate account to which Carol had no access. Conversely, the court found Carol’s testimony “about the resources she utilized from teaching piano lessons, welfare from the parties’ church, family help and government assistance . . . credible and believable.” The court also noted Joseph’s testimony about “the extras that he needed in order to successfully complete medical school course work and the licensing tests,” but indicated Joseph “did not acknowledge any were above and beyond the tuition amount.” In these circumstances, the court’s findings were not an abuse of its broad discretion.

IV. Alimony

¶41 Joseph argues the budget the district court set for him in calculating his alimony was arbitrarily low, because it (1) failed to give him a line item for either his student loan debt or his current educational expenses, (2) failed to calculate his alimony obligation using the marital standard of living, and (3) supported its alimony award by finding Joseph at fault. District “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.” Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036 (quotation simplified). Because we agree with Joseph that the district court should have given him a line item in his budget for either his student loan debt or tuition payments to keep the loan in deferral, we do not address the marital standard of living or fault arguments.

¶42 When deciding whether to award alimony, a district court must consider seven statutory factors, including “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(iii) (LexisNexis Supp. 2019). In determining Joseph’s alimony obligation, the court took each party’s proposed monthly budget and adjusted it to remove discretionary expenses. It did not include a line item for Joseph’s claimed $1,500 in educational expenses for himself. The court also declined to give him a line item for his student loan debt, because it was in deferment and he was not currently making payments on it. Although the court weighed statutory factors such as “the financial condition and needs of [Carol]; [her] earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for the children, the length of the marriage, whether [Carol] ha[d] custody of the minor children requiring support, and whether [she] directly contributed to any increase in [Joseph’s] skill by enabling [him] to attend school during the marriage,” see Id. § 30-3-5(8)(i), (ii), (iv), (v), (vii), the court failed to consider an additional mandatory factor, namely Joseph’s ability to pay, Id. § 30-3-5(8)(iii).

¶43 We conclude the court’s failure to consider Joseph’s ability to pay alimony was a “clear and prejudicial abuse of discretion.” Osborne, 2016 UT App 29, ¶ 25 (quotation simplified). Because the district court found the majority of Joseph’s student loan debt to be his sole obligation, it should have included a line item in his budget either for his student loan payments or for tuition payments that would keep the loan repayment in deferral. We acknowledge Joseph is not currently making student loan payments, but because he was found solely responsible for the loan debt and his share of the house proceeds are insufficient to pay off that debt, we cannot see on this record how he would not be entitled to a line item in his budget to account for either student loan payments or tuition payments.[7]

Although Joseph has a $446 excess in his court-determined budget, a line item for even half of his requested educational expenses would eliminate said excess. This would certainly affect his ability to pay the most modest alimony award. We therefore vacate the award of alimony.

V. Property Distribution

¶44 Finally, Joseph argues the district court’s overall property distribution was inequitable. “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity. Thus, we will uphold the decision of the district court on appeal unless a clear and prejudicial abuse of discretion is demonstrated.” Dahl v. Dahl, 2015 UT 79, ¶ 119, (quotation simplified). Joseph contends he received “93% of the total debt [but only] 25% of the liquid assets.” But as he points out, we cannot “consider[] the property division in a vacuum.” (Quoting Newmeyer v. Newmeyer, 745 P.2d 1276, 1279 n.1 (Utah 1987).) Because the debt division Joseph cites includes both his student loan debt, the majority of which the court found was not marital debt, and the loan Joseph received from his father, which the court also found to be separate debt, the percentages he cites are artificially inflated. In reality, the court split the marital debts equally and did the same with the house proceeds. This does not constitute “a clear and prejudicial abuse of discretion.” Dahl, 2015 UT 79, ¶ 119 (quotation simplified).

CONCLUSION

¶45 Because the district court did not exceed its considerable discretion in imputing Joseph’s income, calculating child support, finding the student loans to be separate debt, and in its overall property distribution, we affirm its decisions on those points. But we vacate the modest alimony award because Joseph does not have the ability to pay it in light of his student loan debt.

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

[1] Because both parties share a last name, we use their given names “with no disrespect intended by the apparent informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

[2] “On appeal from a bench trial, we view the evidence in a light most favorable to the [district] court’s findings, and therefore recite the facts consistent with that standard” and “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 (quotation simplified).

[3] Joseph denies the allegation and claims the conviction prevents him from obtaining meaningful employment.

[4] “‘Joint physical custody’ means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support.” Utah Code Ann. § 78B-12-102(15) (LexisNexis 2018).

[5] Our practice is to provide a parallel citation to reported Utah appellate opinions. For reasons unknown, this opinion has not found its way into the Pacific Reporter, third series, in the four years since it was issued.

[6] Although this statute “addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787. Because the material provisions cited have not changed, we cite the current version of the Utah Code.

[7] It is theoretically possible that Joseph could be the recipient of a scholarship or other financial aid that would allow him to attend school and thereby keep the student loan debt in deferment without actually making any out-of-pocket payment.

But there was no such evidence presented at trial, and the district court made no findings to this effect. Joseph’s testimony that he paid $1,500 per month to finance his current education stands unrefuted. And such a situation would in any event be relatively temporary; at some point in the near future, Joseph will be compelled to begin making payments on $260,000 of student loan debt that the district court assigned solely to him. Some provision must be made in Joseph’s budget to account for this expense.

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What is the easiest way to request alimony in a divorce?

In my jurisdiction (Utah) it would be as easy as making the request in the complaint for divorce, i.e., “Petitioner requests that he/she be awarded alimony.”

If by your question you mean to ask, “What is the best argument for seeking an award of alimony?,” then in my jurisdiction (Utah), the answer is:

  • prove that you have a financial need for alimony, e., show that without financial support from your spouse (i.e., alimony), you cannot maintain (or come as close as possible to maintaining) the standard of living to which you became accustomed during the marriage;
  • prove that your spouse has the ability to pay alimony, e., show that your spouse can maintain (or come as close as possible to maintaining) his/her standard of living to which he/she became accustomed during the marriage and at the same time provide financial support for you.
  • (if fault becomes an issue in the alimony analysis*) prove that you have not engaged in wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship.

*See Utah Code § 30–3–35(8)(c): “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: (i) engaging in sexual relations with a person other than the party’s spouse; (ii) knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child; (iii) knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or (iv) substantially undermining the financial stability of the other party or the minor child.

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

https://www.quora.com/What-is-the-easiest-way-to-request-alimony-in-a-divorce/answer/Eric-Johnson-311

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Eberhard v. Eberhard – 2019 UT App 114 – modification of alimony

2019 UT App 114
THE UTAH COURT OF APPEALS
TODD EBERHARD,
Appellant,
v.
LORI ANN EBERHARD,
Appellee.
Opinion
No. 20170721-CA
Filed June 27, 2019
Third District Court, Salt Lake Department
The Honorable Paige Petersen
No. 024906303
David Pedrazas, Attorney for Appellant Suzanne Marelius, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:

¶1        Todd Eberhard and Lori Ann Eberhard divorced in 2003 after twenty-nine years of marriage. The stipulated divorce decree provided that Todd[1] would pay $4,200 in monthly alimony to Lori and that upon Todd’s retirement at age 65, “spousal support shall be reviewed and modified as provided by law.” After the divorce, Todd continued to work as a physician, while Lori, who had no prior work experience, obtained a job in customer service four years later, in 2007.

¶2        In anticipation of his planned retirement in 2016, Todd filed a petition to modify the decree, seeking to terminate or reduce alimony once he and Lori began receiving funds from his pension. After a bench trial, the district court denied Todd’s request to modify alimony at that time, ordering Todd to continue paying $4,200 in alimony. But the court ordered that when Lori “reaches her full retirement age of 66 and is eligible to receive a social security retirement payment,” Todd’s alimony payment would be reduced by that amount. The court further ordered Todd to pay half of Lori’s attorney fees and costs incurred defending against his petition to modify. Todd appeals, challenging the court’s alimony and attorney fees decisions. We affirm in part and remand for the entry of additional findings of fact, without restriction to any modifications the court deems appropriate.

STANDARDS OF REVIEW

¶3 District courts have “considerable discretion in determining alimony.” Boyer v. Boyer, 2011 UT App 141, ¶ 9, 259 P.3d 1063 (cleaned up). This court reviews “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 [Utah appellate courts] have set and has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84 (cleaned up). Similarly, we “generally review a district court’s determination to modify or not to modify a divorce decree for an abuse of discretion.”[2] Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882.

¶4        When considering a challenge to the sufficiency of the evidence, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous.” Dahl, 2015 UT 79, ¶ 121; see also Shuman v. Shuman, 2017 UT App 192, ¶ 3, 406 P.3d 258. A district court’s “factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if [we have] a definite and firm conviction that a mistake has been made.” Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).

¶5        The district court must “make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Id. ¶ 14 (cleaned up). “Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Id. (cleaned up). Whether the district court’s findings are adequate presents a question of law. Dole v. Dole, 2018 UT App 195, ¶ 3, 437 P.3d 464; Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478.

¶6        We review the district court’s award of attorney fees under Utah Code section 30-3-3, including the amount of the award, for abuse of discretion. Dahl, 2015 UT 79, ¶ 168; Davis v. Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716.

ANALYSIS
I. Alimony

¶7        Relevant to this appeal, the Utah Code instructs district courts to consider certain factors—known as the Jones factors— when determining alimony, including “the recipient’s earning capacity or ability to produce income,” “the financial condition and needs of the recipient spouse,” and “the ability of the payor spouse to provide support.”[3] Utah Code Ann. § 30-3-5(8)(a)(i)– (iii) (LexisNexis 2013); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (listing these factors later codified in Utah Code section 30-3-5). The court’s findings on each statutory factor must be sufficiently detailed “to enable a reviewing court to ensure that the [district] court’s discretionary determination was rationally based upon these factors.” Keyes v. Keyes, 2015 UT App 114, ¶ 33, 351 P.3d 90 (cleaned up).

¶8        The Utah Code also instructs that district courts should generally “look to the standard of living, existing at the time of separation, in determining alimony.” Utah Code Ann. § 30-3-5(8)(e). “However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial.”[4] Id.; see also Dahl v. Dahl, 2015 UT 79, ¶ 111 (“[W]hile an alimony award would ideally allow both spouses to maintain the standard of living enjoyed during the marriage, the court is nevertheless obligated to support any alimony award with specific factual findings as to each statutory factor and is permitted to deviate from the general rule in light of the relevant facts and equities.”). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Hansen v. Hansen, 2014 UT App 96, ¶ 6, 325 P.3d 864 (cleaned up). These same considerations apply in later modification proceedings. Nicholson v. Nicholson, 2017 UT App 155, ¶ 17, 405 P.3d 749.

¶9        Here, the district court relied on the parties’ testimony at the trial on the petition to modify to determine their standard of living at the time of their separation. Specifically, the court found that “during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full every month.”

¶10      The court then considered the Jones factors. It found that every month Lori, who was age 63 at the time of trial, earned $1,621.88 from her customer service job, received $4,200 in alimony, and received $1,533.74 as her share of Todd’s pension. After deducting taxes, Lori was left with a net monthly income of $6,141. Lori also had $330,000 in retirement accounts, which was her share of the divorce settlement. Lori had incurred loans and debt after the divorce, and her reasonable monthly expenses amounted to $5,309—an amount that the court found was “less than what [Lori] requires to live commensurate with the marital standard of living.”

¶11      As for Todd, who was 66 years old and remarried, the court found that every month he received $3,827.71 from his pension and $2,326 from Social Security, and drew $3,500 from various retirement accounts. After deducting taxes, Todd had a net monthly income of $7,654. In addition, the court found that Todd had $1.5 million in retirement accounts from which he could draw “variable” amounts “at his discretion.” Todd testified that he was supporting his current spouse who was not employed. The court found Todd’s reasonable monthly expenses to be $8,041—a figure that did not include the alimony payment. The court also found that he had “a very secure and comfortable lifestyle” and “no debt.” As a result, the court found that Todd “has the ability to pay $4,200 [in] monthly alimony.”

¶12      In arriving at its decision, the district court deemed two other statutory factors “significant.” In particular, the court considered “whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage,” Utah Code Ann. § 30-3-5(8)(a)(vii), and whether “one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage,” id. § 30-3-5(8)(g). The court determined that both of these factors were “applicable and support no reduction of alimony in this case.”

¶13      Based on these findings, the court denied Todd’s request to terminate or reduce alimony at that time.[5] It determined that Todd will continue to pay $4,200 in monthly alimony for three years—until Lori reaches age 66 and qualifies for Social Security. At that point, Lori will receive about $1,319 per month from Social Security, and the court ordered that Todd will then be allowed to reduce the alimony payment by the amount Lori receives from Social Security. In so doing, the court stated that Lori’s income from her job, alimony, and Todd’s pension are presently “needed to meet her reasonable expenses,” but even then “she will still not have the standard of living of the marriage.” It noted that Lori’s needs “include the shortfall she has accumulated over the years since the divorce” and that Lori was “presently only barely meeting her needs for that debt service and reasonable monthly expenses.” Given these considerations, the court stated its “intent to move [Lori] closer to being able to pay off her debt and better achieve a standard of living commensurate with the marital standard of living in this alimony award.” However, the court made no specific finding as to what Lori’s reasonable total monthly needs would be, observing only that her needs were greater than her current monthly expenses of $5,309.

¶14      We address Todd’s challenges to the alimony award as follows: (A) the marital standard of living, (B) Lori’s earning capacity, (C) Lori’s needs, (D) Todd’s ability to provide support, and (E) the parties’ line-item expenses. We affirm the district court in most respects, but we remand for the court to provide additional findings on the issues of Lori’s needs and Todd’s ability to pay.

A. The Marital Standard of Living

¶15      Todd contends that the district court’s findings about the parties’ standard of living at the time of divorce—particularly regarding whether the cars were paid off and whether the parties paid their bills in full—were not supported by sufficient evidence. Todd also contends, in a conclusory manner, that the district court’s findings were inadequate.

¶16      As stated, the court found that “[t]he trial testimony confirmed that during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full each month.” The court noted that the parties’ testimonies in this regard were “quite consistent” and were sufficient to support its findings regarding the standard of living at the time of the divorce.

¶17      Todd has not shown clear error in the district court’s findings on this score. First, Todd overlooks the fact that Lori testified that during the marriage she always had a car and they “paid for [their] cars outright[].” Second, Todd ignores Lori’s testimony that, except for the house, they had no debt, “paid off [their] credit cards,” and had funds available for unexpected expenses like replacing tires on a car. We conclude that Lori’s testimony in this regard is sufficient evidence to support the district court’s findings. See Bond v. Bond, 2018 UT App 38, ¶ 10, 420 P.3d 53 (reasoning that “[b]ecause the trial court’s factual findings are clearly supported by [a witness’s] testimony, we cannot conclude that they lack general evidentiary support”); see also Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994 (“[A]n appellate court’s role is not to reweigh the evidence presented at trial but only to determine whether the court’s decision is supported by the evidence, leaving questions of credibility and weight to the trial court.”).

¶18      Todd’s general challenge to the adequacy of the district court’s findings also fails. The court explicitly stated that in considering the parties’ standard of living existing at the time of divorce, it was relying on the parties’ trial testimony, and Todd has not established that the court failed to show “the steps by which the ultimate conclusion on each factual issue was reached.” See Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (cleaned up). We therefore reject Todd’s arguments about the sufficiency of the evidence and adequacy of the district court’s findings regarding the parties’ standard of living.

B. Lori’s Earning Capacity

¶19      Todd contends that in considering Lori’s earning capacity and ability to produce income, the district court “should have included [Lori’s] income from Social Security and the unearned income from her retirement [accounts].”

¶20      District courts generally have “broad discretion in selecting an appropriate method of assessing a spouse’s income.” Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255; see also, e.g., Davis v. Davis, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716 (concluding that “while the trial court could have considered [a portion of the wife’s monthly paycheck that she saved for retirement] as income, the court did not exceed its permitted range of discretion in choosing not to do so” (cleaned up)). Indeed, Utah law specifically grants district courts “flexibility to consider all sources of income” without mandating that the court treat all sources as income for purposes of calculating alimony. See Busche v. Busche, 2012 UT App 16, ¶ 31, 272 P.3d 748; see also Crompton v. Crompton, 888 P.2d 686, 689 (Utah Ct. App. 1994) (explaining that “it would be inappropriate for an appellate court to tie the hands of a [district] court” by requiring it in every case to confine its consideration of income in a certain way). Such matters are “left to the [district] court’s judgment,” Busche, 2012 UT App 16, ¶ 31, and will not be set aside absent “a clear and prejudicial abuse of discretion,” Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998), aff’d, 1999 UT 78, 985 P.2d 255.

¶21      In support of his position, Todd relies on Utah caselaw stating that “when determining an alimony award, it is appropriate and necessary for [district] courts to consider all sources of income.” Hansen v. Hansen, 2014 UT App 96, ¶ 14, 325 P.3d 864 (cleaned up). It is correct that district courts “must be able to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source—overtime, second job, self-employment, etc., as well as unearned income.” Crompton, 888 P.2d at 689. But while this 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 by a spouse for that purpose. Rather, we read this caselaw as preserving a district court’s broad discretion to treat sources of income as the court sees fit under the circumstances. See Griffith, 1999 UT 78, ¶ 19; Busche, 2012 UT App 16, ¶ 31.

¶22      In calculating Lori’s earning capacity and ability to produce income, the district court considered and declined to include as income any funds that Lori could potentially draw from her retirement accounts or that she could receive by electing to collect Social Security benefits early. The court found that if Lori began receiving Social Security benefits at her then-current age of 63, she would receive less than she would if she waited until age 66. As the court stated, “[t]he parties did not dispute that at [Lori’s] current age she would receive 37.8% of the 50% retirement benefit she could claim on [Todd’s] earnings record” and it was “undisputed that if she waited until age 66, her full retirement age, she could claim the full 50% on that earning record.”[6] Lori would “suffer a financial penalty” if she began drawing on Social Security benefits before age 66. As a result, the court was unwilling “to require [Lori] to make an unwise financial decision” and declined to include these sources in its calculation of Lori’s income.

¶23      Todd has not shown an abuse of discretion under these circumstances. Lori was not receiving Social Security benefits and would have faced reduced benefits if she began receiving them early. Given the fact that the court was concerned that Lori’s “needs have not been met by the alimony order made at the divorce,” the court considered Lori’s potential Social Security benefits and reasonably decided not to impose an “unwise financial decision” on Lori by requiring her to start receiving a smaller amount of Social Security benefits than she otherwise would be entitled to take three years later.[7]

¶24      Todd also has not shown that the district court abused its discretion by choosing not to include in Lori’s income any unearned income generated from her retirement accounts. Though Todd urged the court to assume “a modest 6% interest” rate on Lori’s retirement accounts, he did not provide evidence in support of his request, and Lori did not agree with that figure. At trial, Lori testified that two-thirds of her retirement account was tied up in annuities from which she would not receive income until she reaches age 70. She testified that she had not yet drawn on the other one-third of her retirement, and when asked whether she was earning interest, she responded that her account “fluctuates up and down” and could not say whether she had realized an increase. In light of the record and the district court’s “broad discretion in selecting an appropriate method of assessing a spouse’s income,” Griffith, 1999 UT 78, ¶ 19, the court did not exceed the bounds of its discretion in declining to treat any unearned income on Lori’s retirement accounts as income for purposes of determining alimony.

¶25      Moreover, Todd has cited no authority for the proposition that a court must require a spouse to claim early Social Security benefits or begin withdrawals from retirement accounts. We have located no such Utah authority. But we note that authority from other jurisdictions counters Todd’s position. See, e.g., Huertas Del Pino v. Huertas Del Pino, 229 So. 3d 838, 839–42 (Fla. Dist. Ct. App. 2017) (holding that, for purposes of awarding alimony, income should not be imputed to an ex-spouse “based on her eligibility for Social Security retirement benefits she had not yet applied to receive” when “there was no evidence of any bad faith” on the ex-spouse’s part and when “she articulated a rational reason for delaying her application for Social Security benefits—namely, that she would receive greater benefits by postponing her receipt of benefits”); McKernan v. McKernan, 135 A.3d 1116, 1117–18 (Pa. Super. Ct. 2016) (locating “no authority empowering a trial court to order [the wife] to apply for and obtain Social Security Retirement benefits prior to reaching full retirement age,” or requiring the inclusion as part of the wife’s income the benefit amount for which she is eligible); see also, e.g., Gutierrez v. Gutierrez, 972 P.2d 676, 681 (Ariz. Ct. App. 1998) (stating that a receiving spouse “should not be compelled to withdraw the money in [a] retirement account to supplement her modest income” and that the “spouse should not be expected to live off both the principal, and interest, exhausting whatever financial reserves she possesses to the extent that when she no longer had any earning capacity there would be nothing left upon which she could draw” (cleaned up)); In re Marriage of Novak, 83 S.W.3d 597, 601 (Mo. Ct. App. 2002) (explaining that income from retirement accounts “must be considered in calculating benefits” but that “trial courts are not required to impute income [from] retirement and IRA accounts in every case” given their broad discretion in this area).

¶26      For these reasons, we conclude that the district court acted within its discretion when it declined to include Social Security and unearned income on Lori’s retirement accounts as part of her current income. Given our conclusion in this regard, we likewise conclude that the district court did not abuse its discretion in denying Todd’s motion for a new trial based on these same issues.

C. Lori’s Needs

¶27      Next, Todd contends that the district court erred in finding that Lori’s needs were unmet when evaluating her financial condition and needs. Todd’s argument has three parts. First, he relies on Utah Code section 30-3-5(8)(i)(ii) to argue that the district court erroneously considered Lori’s needs that did not exist at the time of the divorce. Second, he argues that the evidence was insufficient to support the court’s finding that Lori’s needs were not being met at the time the decree was entered. Third, he contends that the court’s findings regarding Lori’s needs are not adequate.

1. Utah Code Section 30-3-5(8)(i)(ii)

¶28      Todd first claims that the district court “improperly addressed [Lori’s] needs . . . that did not exist at the time the decree was entered.” Todd bases this argument on Lori’s purchase of a furnace and air conditioner, her periodic visits to a chiropractor, her car loan for a new vehicle, and her “debt incurred after voluntarily being unemployed for 4 years after the divorce.” Citing Utah Code section 30-3-5(8)(i)(ii), Todd then concludes that Lori “failed to cite any extenuating circumstances that would allow the court to address [her] needs . . . that didn’t exist at the time of divorce.”

¶29      Utah Code section 30-3-5(8)(i)(ii) provides that “[t]he court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.” Utah Code Ann. § 30-3-5(8)(i)(ii) (LexisNexis 2013). In other words, absent extenuating circumstances, the statute “generally prevents a district court from modifying an alimony award to account for new needs.”[8] Fish v. Fish, 2016 UT App 125, ¶ 6, 379 P.3d 882.

¶30      In a pretrial motion in limine, Todd asserted that, under section 30-3-5(8)(i)(ii), the court was “prohibited from addressing [Lori’s] increased needs . . . without finding extenuating circumstances.” According to the motion, the district court “should only review whether [Todd] has the ability to pay the current amount of ordered alimony and whether [Lori’s] need for $4,200 per month has been reduced based upon the pension benefits received from [Todd’s] retirement and [Lori’s] Social Security.” Before the presentation of evidence at trial, the court ruled that it would not exclude any evidence and that it would figure out later “how the law should apply to whatever facts” were adduced at trial.

¶31      On appeal, Todd asserts that the district court did not find extenuating circumstances under section 30-3-5(8)(i)(ii) and that the court erroneously addressed Lori’s needs that did not exist at the time of divorce. We reject this argument because it rests on a false premise, namely, that the district court accounted for Lori’s needs that did not exist at the time of the divorce. In fact, the district court explained, in a post-trial order, with regard to section 30-3-5(8)(i)(ii) that “[n]ot knowing before trial what evidence of increased needs might be submitted, the Court agreed that any increased needs not existing at the time of the divorce would not be used to increase the alimony award unless it was justified by extenuating circumstances.” The court further explained that “[n]one of [Lori’s] current expenses were new, increased needs that did not exist at the time of the divorce,” given that “[t]hey were basic needs that existed at the time of the divorce,” including the needs for “a home, heating and air conditioning in the home, a car, food, and basic medical care.”[9]

¶32      The court’s decision was “not based on any new needs, but based on exactly the same kind of needs that [Lori] had in 2003.” Because Lori had been “forced to take out a second mortgage” and incur credit card debt to meet basic needs, the court found that Lori’s standard of living had “fallen” from the lifestyle she enjoyed at the time of the divorce and that Lori’s needs “have not been adequately provided for at the marital standard since the time of the divorce.” Thus, instead of addressing needs that did not exist at the time of the divorce, the court found on Todd’s petition to modify that the stipulated alimony had never met Lori’s needs because it still did not “bring[] her up to [the marital] standard of living.”[10] Ultimately, new or “increased needs did not factor into” or underlie the court’s decision. Because we disagree with Todd’s characterization of the district court’s decision, Todd has not shown that it ran afoul of section 30-3-5(8)(i)(ii).

¶33      Relatedly, Todd contends that the district court erred in denying his motion for a new trial, which raised three grounds related to section 30-3-5(8)(i)(ii). He argued that a new trial was justified due to “an irregularity in the proceeding,” insufficient evidence, and an error in law.[11] Todd’s motion was largely based on his understanding that evidence of Lori’s increased needs would be considered only upon a finding of extenuating circumstances. According to Todd, he “shifted [his] strategy” in response to the district court’s ruling on his motion in limine, and he “focuse[d] on disproving extenuating circumstances” instead of submitting evidence of his ability to pay alimony and contesting more of Lori’s expenses. In attacking the court’s denial of his motion for a new trial, Todd again rests his arguments on the premise that the court addressed increased needs.

¶34      But Todd again misreads the district court’s decision. The court did not agree to exclude any evidence when it ruled on Todd’s motion in limine, and it ultimately did not address Lori’s needs that did not exist at the time of divorce. Under these circumstances, Todd has not shown that the court abused its discretion in denying him a new trial under any of his proposed justifications or theories.

2. Sufficiency of the Evidence

¶35      Second, Todd argues that the evidence was insufficient to support the court’s finding that Lori’s needs were not being met at the time of the decree. The court found that although Lori’s needs at the time of divorce were not expressly determined in 2003, the decree’s alimony award of $4,200 “ended up not being enough to keep [Lori]” living at the marital standard. The court stated that it drew this finding from the evidence that Lori had a second mortgage on her house; she “kept the same car for 12 years, she bought a used car, [and] she’s got a loan on [it]”; she had credit card debt;[12] and she has a “more modest standard of living” compared to that of the marriage. Given that the marital standard of living included paid-for cars and bills paid in full each month, and that Lori had been “borrowing to fill the gap in her needs created by the divorce,” the district court did not clearly err in finding that Lori’s needs at the time of the divorce had not been met by the $4,200 alimony award.

3. Adequacy of the Findings

¶36      Third, Todd claims that the district court’s findings regarding Lori’s needs are inadequate to show that her needs were not being met. In considering this issue, we bear in mind that this court has stated that a district court “may not merely restate the recipient spouse’s testimony regarding her monthly expenses”; instead, “the court must state that the calculation of monthly expenses is reasonable and must explain how it arrived at the monthly amount, or at least from the record, allow us to make this determination ourselves.” Rehn v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (cleaned up). Further, we are mindful that “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (cleaned up). Indeed, “[a]n alimony award in excess of the recipient’s need is a basis for remand even when the payor spouse has the ability to pay.” Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994.

¶37      Todd focuses his attack on Paragraph 18 of the court’s findings, which states:

The Court finds that in many ways [Lori’s] needs have not been met by the alimony order made at the divorce, and that her standard of living has fallen below the quality of life and standard of living of the marriage to which she is entitled. Her Financial Declaration shows significant debt consisting of a first and second mortgage on her residence, a vehicle loan with a balance of $17,229, credit card debt of $16,296, and her attorney fees have been put on a credit card. Her Financial Declaration showed a gap between her net income of $4,608, before receipt of pension, and expenses of $5,309 showing a monthly shortfall. Her listing of current expenses shows $220 per month as the minimum payment on her credit cards which will not realistically pay the debt. The Court finds [Lori] has been borrowing to fill the gap in her needs created by the divorce. It appears that she has a shrunken standard of living compared to the marital standard of living as she has incurred loans and debt, which was not part of the marital standard. [Lori] has not been extravagant. Her stated needs on the Declaration of $5,309 are very reasonable and, in fact, less than what she requires to live commensurate with the marital standard of living and the Court finds a historic gap and income shortfall since the divorce which has created debt. It is evident that [Lori’s] debt will not be paid off at the minimal contribution level, that any future emergency such as a flat tire, medical expense, replacement of a furnace or attorney fees requires her to add to her debt as she does not have resources to pay for such events.

Under the district court’s math, Lori had a monthly shortfall of $701 before she started receiving her portion of Todd’s pension.

And after she started receiving money from the pension, she had a surplus of $832—a result that appears in conflict with the principle that alimony may not exceed the recipient spouse’s needs. See id.; Jensen, 2008 UT App 392, ¶ 13.

¶38      Nevertheless, we do not understand the court to have intended to award Lori more than her needs. Although there appears to be a surplus, awarding her more than her stated monthly expenses appears to be consistent with the court’s overall intention to award sufficient alimony to help Lori retire debts and achieve the marital standard of living. Indeed, the court expressed its intention “to move [Lori] closer to being able to pay off her debt and better achieve a standard of living commensurate with the marital standard of living in this alimony award.”

¶39      Yet the district court’s findings regarding Lori’s needs are not sufficiently detailed to “disclose the steps” the court took to reach its ultimate conclusion that the $4,200 in alimony was required to meet those needs. See Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (cleaned up). The court relied on Lori’s financial declaration to find that her existing reasonable monthly expenses were $5,309, but the court found that this amount was “less than what she requires to live commensurate with the marital standard of living.” The court also found that Lori’s $220 monthly payment on her credit cards “will not realistically pay the debt” and that Lori was “only barely meeting her needs for [her] debt service.” But the court’s findings do not specify how much more Lori actually needs each month to pay down her debt and elevate herself to the marital standard of living, which includes living without debt.

¶40      It may be that the court concluded that the $832 surplus was enough for Lori to reach those goals. It also may be that the court concluded that the additional $832 still did not achieve those goals. Without the district court more precisely spelling out the amount that Lori realistically requires to pay off the debt and to enjoy the marital standard of living, we are unable to discern whether the alimony award, in fact, exceeds her needs. We thus cannot conduct meaningful appellate review and cannot ensure that the district court’s discretionary determination on alimony was “rationally based.” See Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882. Accordingly, we remand for the district court to enter more detailed findings on this issue and to alter its conclusions as may be necessary. See Barrani, 2014 UT App 204, ¶ 30; Rayner, 2013 UT App 269, ¶ 12.

D. Todd’s Ability to Provide Support

¶41      Todd complains that the district court “failed to properly consider [his] needs and expenses.” He asserts that the court’s decision left him with a $4,587 total shortfall, while Lori’s “alimony award exceeds her needs.” He also asserts that the court’s findings regarding his ability to provide support were inadequate.

¶42      Paragraphs 22 and 23 of the district court’s findings of fact address Todd’s ability to pay alimony. In particular, the court found that after adjustments, Todd’s expenses were $8,041 per month. It also found that

[Todd’s] stated net [income] is $7,654 which creates a shortfall; however, he has discretion over a large part of his income. [Todd] has accumulated retirement assets consisting of bond funds, IRAs, [a] 401(k), and annuities, which total $1.5 million in principal. [Todd] testified that he takes a monthly draw of 3% ($3,500) per month, and that the amount of the draw is entirely at his discretion. The Court notes that if his draw increased 1%–2% he is still not likely to run out of his principal over the remaining alimony term or his lifetime.

¶43      An alimony award “must be within the payor spouse’s ability to pay.” McPherson v. McPherson, 2011 UT App 382, ¶ 15, 265 P.3d 839. Here, in finding that Todd could pay alimony, the court acknowledged that Todd had a shortfall. In so doing, it did not account for the $4,200 alimony payment that he was making to Lori, and it suggested that Todd had enough money in his retirement accounts to cover his shortfall. But the court did not explain in enough detail how, given the shortfall, the alimony award was within Todd’s ability to pay. The court also did not provide specific calculations to show that Todd could draw sufficient funds from his retirement accounts to cover the shortfall while not unreasonably depleting the principal.

¶44      As with its findings about Lori’s needs, we conclude that the court’s findings about Todd’s ability to pay do not “disclose the steps” it took to reach its ultimate conclusion that the alimony award was within Todd’s ability to pay. See Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (cleaned up). We therefore remand for the district court to enter more detailed findings on this issue as well. To the extent the court on remand modifies Lori’s needs and Todd’s ability to pay, the court should also reconsider its alimony determination in light of any altered figures. See Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294 P.3d 591; see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (explaining that “where the recipient’s needs appear to exceed the payor’s ability to pay and the alimony award seems to exceed the recipient’s needs, we must remand to give the trial court an opportunity to address the apparent discrepancies in the alimony calculation and to conduct an appropriate reanalysis . . . . [to] ensure that the alimony award exceeds neither [the recipient’s] demonstrated need nor [the payor’s] ability to pay”).

E. The Parties’ Line-Item Monthly Expenses

¶45 Lastly, Todd challenges the district court’s decisions regarding several of the parties’ line-item expenses: (1) Lori’s food and household expenses; (2) Lori’s extracurricular activities, which included airfares to visit the parties’ adult children; (3) Lori’s expenses on donations and gifts; (4) Todd’s dental expenses; and (5) the parties’ real property maintenance expenses.

¶46      First, Todd contends that the district court erred when it allowed Lori to have $500 in food and household expenses, when she had claimed only $300 for such expenses in 2014 and when “there was no justification for the increase of $200 per month.” The district court found that Lori’s “stated needs” on her 2016 financial declaration were “very reasonable.” The court thus accepted Lori’s figure of $500 for her monthly food and household supplies and thereby found that $500 accurately represented such expenses. Regardless of whether Lori stated a lower figure for such needs in 2014, Todd has not shown that the district court’s finding of her needs on this point lacked sufficient evidentiary support or required more detailed findings. See Fish v. Fish, 2016 UT App 125, ¶ 28, 379 P.3d 882 (“Failure to rule in favor of one party neither renders the evidence insufficient to support the findings nor the findings inadequate to support the ruling.”).

¶47      Second, Todd challenges the court’s decision to allow Lori $200 per month for extracurricular activities, which included air flights to visit their adult children. When Todd examined Lori about these expenses at trial, Lori testified that those expenses were for her travel to visit the parties’ children and “often include[d] the food at the destination” for herself and the children when she was treating them for dinner in exchange for their hospitality. The court accepted Lori’s declared expenses and allocated her $200 per month for these expenses. It also gave her $100 per month for entertainment. It bears noting that Todd listed $1,000 for his monthly travel and entertainment costs, which he attributed to “traveling all over the west.” The court allowed him to claim these monthly expenses. Under these circumstances and when the court also found that the marital standard of living included regular vacations, we cannot say that the district court abused its discretion in assessing Lori’s monthly expenses related to extracurricular activities.

¶48      Third, Todd challenges Lori’s expenses for donations and gifts. The district court found that Lori’s reasonable monthly expenses included $100 for donations and $200 in gifts, accepting Lori’s figures in her financial declaration. Likewise, the court accepted Todd’s figures of $100 for donations and $200 in gifts. In light of the fact that the court allocated the same amount for each party to spend on donations and gifts, Todd has not shown that the district court abused its discretion. Cf. Rule v. Rule, 2017 UT App 137, ¶ 26, 402 P.3d 153 (inferring that the parties’ current expenses were based on the marital standard of living when “the majority of the expenses in [the husband’s current] financial declaration are identical in amount to those identified as marital expenses in [the wife’s current] financial declaration”); Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (seeing “no impropriety in the trial court’s decision to impute housing needs to [the wife] in the same amount as [the husband] had claimed was reasonable for him”).

¶49      Fourth, Todd complains that the district court adjusted his monthly dental expenses down from $900 to $50. Todd’s financial declaration listed $900 per month in dental expenses, noting that he spent $14,000 on such expenses in 2016. The court relied on Todd’s testimony to find that these expenses were “fully paid and not recurring.”[13] On that basis, the court adjusted Todd’s dental expenses down to $50 per month. Though Todd disagrees with this decision, he has not shown that the district court exceeded the bounds of its discretion. [14]

¶50      Fifth, Todd complains that the district court improperly reduced his claimed real property maintenance expenses from $1,000 to $100 per month.[15] Todd listed $1,000 as his monthly real estate maintenance expenses on his financial declaration. In the court’s findings on Todd’s expenses, it adjusted this expense to $100 per month given Todd’s testimony about “numerous completed and paid-for projects such as a new deck, new windows, a new roof, [and] replacement of furnace and appliances.” Yet when the court totaled Todd’s monthly expenses, it did not make that downward adjustment, effectively accepting Todd’s claimed real estate maintenance expenses at $1,000. Despite the court’s stated intention to adjust Todd’s expenses downward, the court did not make the adjustment, and thus Todd has not shown how he was prejudiced by any alleged error regarding real estate maintenance expenses. See Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”).

II. Attorney Fees

¶51      We first address Todd’s challenge to the district court’s award of attorney fees to Lori. We then consider Lori’s request for her attorney fees incurred on appeal.

A. The District Court’s Award of Attorney Fees

¶52      Utah Code section 30-3-3(1) permits a court to award attorney fees to a party in certain divorce proceedings “to enable [a] party to prosecute or defend the action.”[16] Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). “Such an award must be based on evidence of the receiving spouse’s financial need, the payor spouse’s ability to pay, and the reasonableness of the requested fees.” Dahl v. Dahl, 2015 UT 79, ¶ 168 (cleaned up). The decision to award attorney fees under Utah Code section 30-3-3 and the amount thereof “rests in the sound discretion of the district court.” Id.; Davis v. Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716. We also require that such attorney fees awards be “based on sufficient findings.” Davis, 2003 UT App 282, ¶ 14 (cleaned up).

¶53      The district court ordered Todd to pay half of Lori’s attorney fees under Utah Code section 30-3-3(1). In support, the court cited the parties’ financial declarations, their assets, Todd’s ability to pay, and Lori’s needs. The court found that Lori paid her attorney fees with her credit card, was living “on a month-to-month basis,” had not accumulated additional savings since the divorce, and had a budget that did “not allow for any extraordinary expenses such as litigation fees.” In contrast, the court found that Todd paid his attorney fees in full, had no debt, had accumulated substantial savings since the divorce, had $1.5 million from which to draw for expenses and other needs, and had the ability to pay some of Lori’s attorney fees.

¶54      The district court also determined that Lori’s reasonable attorney fees and costs totaled $19,025. In so doing, the court noted that it had directed Lori’s counsel to compile an updated fee affidavit after trial and that the updated affidavit contained a larger fee amount than that originally submitted. Todd objected to the larger amount, accusing Lori’s counsel of bad faith and lying. The court found that these accusations were both uncivil and inaccurate. It compared the initial affidavit and the updated affidavit, and it found that the only difference is that the initial affidavit “contains only an estimate of the time necessary to prepare for trial, while the [updated] affidavit contains the actual time billed” for the three months around the time of trial. The court found “no inflation of fees or dishonesty” on the part of Lori’s counsel; it instead found that Lori’s counsel “did high-quality work quite efficiently, with respect to the limited resources of her client.” Having rejected Todd’s objection, the court ordered Todd to pay $9,512.50 to Lori, representing half of her total fees.

¶55      Todd makes three arguments challenging the attorney fees award. First, he asserts that Lori’s counsel “should have identified how much [Lori] has paid her and whether she has an outstanding balance,” suggesting that Lori had “already paid” her attorney and thus had no actual financial need for assistance paying those fees. This argument misses the mark. The court found that Lori used her credit card to pay her attorney fees and that she still owed her credit card company. Thus, we are not persuaded that the court erred in finding that Lori had a need for attorney fees.

¶56      Second, Todd complains that $19,025 in fees was unreasonable in light of Lori’s counsel’s initial representation that her fees totaled around $10,892. The district court found that this difference was explained by the fact that the initial figure was “only an estimate” of Lori’s counsel’s time preparing for trial, whereas the updated figure was “the actual time billed.” The court also found that Lori’s counsel’s updated figure represented her reasonable fees and, contrary to Todd’s assertions, contained no inflated fees or dishonesty. Todd disagrees with the court’s assessment, but he has not established any abuse of discretion in its decision.

¶57      Third, Todd complains that ordering him to pay half of Lori’s attorney fees is “inherently unfair” when he has a shortfall while Lori has a surplus. The district court’s findings in connection with its attorney fees decision rely on its alimony findings regarding Lori’s needs and Todd’s ability to pay— findings that we have concluded do not adequately show the steps the court took to reach its decision. Supra ¶¶ 39–40, 43–44. Thus, although we reject two of Todd’s arguments challenging the award of attorney fees, we remand for the district court to enter more detailed findings on Lori’s financial need and Todd’s ability to pay and, if necessary, for the court to reconsider the attorney fees award in light of any altered figures. See Taft v. Taft, 2016 UT App 135, ¶¶ 88–89, 379 P.3d 890; Andrus v. Andrus, 2007 UT App 291, ¶ 19, 169 P.3d 754.

B. Attorney Fees on Appeal

¶58      Lori requests an award of attorney fees incurred on appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 31 (cleaned up). Given the mixed result on appeal, we decline to award Lori attorney fees on appeal. See Andrus, 2007 UT App 291, ¶ 19.

CONCLUSION

¶59      We affirm the district court’s alimony decision in many respects. But we conclude that the district court’s findings regarding Lori’s needs and Todd’s ability to pay are not adequately detailed to permit meaningful appellate review. Accordingly, we remand to the district court with instructions to enter more detailed findings on those issues. After making those findings, the court may modify its award of attorney fees and alimony if warranted.

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

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[1] Because the parties share a surname, we refer to each party by his or her first name, as is our practice in such situations. We intend no disrespect by the apparent informality.

[2] Todd also contends that the district court erred in denying his motion for a new trial and his motion to amend the findings and judgment, both of which raised issues with the district court’s alimony decision. As with the court’s alimony decision, we review its denial of both post-trial motions for abuse of discretion. See Eskelsen v. Theta Inv. Co., 2019 UT App 1, ¶ 22, 437 P.3d 1274 (motions to amend findings and judgment); Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶ 5, 437 P.3d 1257 (motions for a new trial).

[3] The other factors that the court must consider include the following: “(iv) the length of the marriage; (v) whether the recipient spouse has custody of minor children requiring support; (vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and (vii) whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.” Utah Code Ann. § 30-3-5(8)(a)(iv)–(vii) (LexisNexis 2013).

[4] This court has understood this statute “to allow a court the discretion to consider the standard of living at the time the modification petition is tried” and noted that “[s]uch a reading comports with the rationale underlying alimony modification proceedings: adjustment to reflect changed financial circumstances.” Nicholson v. Nicholson, 2017 UT App 155, ¶ 20, 405 P.3d 749.

[5] Given the language in the decree stating that “spousal support shall be reviewed and modified” upon Todd’s retirement, the parties appear to assume that Todd’s retirement opened the door for the district court to modify alimony. We have no occasion to question that assumption in this case.

[6] Under Social Security Administration rules, a person may retire at any time between age 62 and full retirement age, but if a person begins collecting benefits early, those benefits are reduced. See Benefits Planner: Retirement, Social Security Administration, https://www.ssa.gov/planners/retire/agereducti on.html [https://perma.cc/B5RT-SUQY]. See generally 20 C.F.R. § 404.409 (2018); id. § 404.410.

[7] The court further observed that Lori was trying to work as long as she could and that when she retires and takes Social Security, those benefits will “cancel” or “replace” her salary from her customer service job.

[8] This court has previously noted that this statute “does not appear to forbid a court from considering the recipient spouse’s new needs in its decision not to modify.” Fish v. Fish, 2016 UT App 125, ¶ 8 n.3, 379 P.3d 882.

[9] Because the parties stipulated to the divorce decree, the district court entered the decree in 2003 without making findings regarding Lori’s needs at the time of the divorce. As a result, in ruling on Todd’s petition to modify, the court effectively found that Lori’s current needs existed at the time of the divorce, and it analyzed whether Lori could meet her needs.

[10] Before the district court, Todd argued that the $4,200 of alimony awarded in the decree defined or equated to Lori’s needs at the time of the divorce and that Lori’s receipt of $1,533.74 from his pension meant that she had an increase in needs since that time. The court rejected these arguments, explaining that the stipulated amount of alimony “ended up not being enough to keep her in the lifestyle that she was accustomed to” and that, even with the pension, Lori had “exactly the same kind of needs that she had in 2003.”

[11] Under rule 59 of the Utah Rules of Civil Procedure, a new trial may be granted due to “irregularity in the proceedings of the court, jury or opposing party, or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial”; due to “insufficiency of the evidence to justify the verdict or other decision”; or when “the verdict or decision is contrary to law or based on an error in law.” Utah R. Civ. P. 59(a)(1), (6), (7).

[12] Todd makes much of the fact that Lori’s credit card debt increased substantially between 2014 and 2016, suggesting that her debt did not increase between 2003 and 2014 and that her needs were met in 2003. But Todd overlooks that Lori incurred other debts—the second mortgage and the car loan—between 2003 and 2014.

[13]  On appeal, Todd implies that “[i]t is very likely he will continue to have ongoing Dental Expenses” given his age. Yet when asked at trial whether he expected his dental expenses to be ongoing, he testified, “No, I don’t think so.” He also testified that his “dental [expenses] will probably go down.”

[14] In connection with his complaint about his dental expenses, Todd also briefly claims that the court’s decision allocating $450 per month to Lori for health care expenses is unsupported by the evidence. But Lori’s financial declaration provided evidentiary support for this figure, and Todd has not explained why it is insufficient to support the court’s finding. See Sauer v. Sauer, 2017 UT App 114, ¶ 12, 400 P.3d 1204 (concluding that the district court did not clearly err in finding that a spouse had unmet needs when her financial declaration supported that finding).

[15] Todd also suggests that Lori’s competing expenses for real property maintenance lack evidentiary support. But Lori’s financial declaration listed $550 per month for real property maintenance, and Lori testified about that figure at trial. Todd has not demonstrated on appeal that this evidence was legally insufficient to support the district court’s finding.

[16] Section 30-3-3(1) allows for an award of attorney fees, as relevant here, in actions “to establish . . . alimony.” Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). This court has considered actions to modify alimony to fall within this provision. See, e.g., Gore v. Grant, 2015 UT App 113, ¶¶ 25, 31, 349 P.3d 779 (“The modification proceedings . . . involved a request to modify child support, in other words, to establish a different support obligation.”). However, the statute “does not provide for attorney fees to defend an action to terminate alimony.” Scott v. Scott, 2017 UT 66, ¶ 32, 423 P.3d 1275. Todd’s petition to modify sought to terminate or reduce alimony, but Todd makes no argument that section 30-3-3(1) could not support an award here. Thus, we assume the provision applies.

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Xu v. Zhao – 2018 UT App 189 – when it comes to determining alimony, almost anything goes.

2018 UT App 189

THE UTAH COURT OF APPEALS

DEGAO XU,
Appellant and Cross-appellee,
v.
HONGGUANG ZHAO,
Appellee and Cross-appellant.

Opinion
No. 20160453-CA
Filed October 4, 2018

Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 124402420

Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellant and Cross-appellee
Brandon C. Bowen, Attorney for Appellee and Cross-appellant

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and DIANA HAGEN concurred.

HARRIS, Judge:

¶1        Degao Xu and Hongguang Zhao divorced in 2015, after twenty-three years of marriage. After a bench trial and post-trial motions, the trial court ultimately ordered Xu to pay $534 per month in alimony. Both parties are dissatisfied with that ruling, and both appeal. We affirm.

BACKGROUND

¶2        The parties were married in China in 1992, but later moved to Utah. During their marriage, Xu obtained a Ph.D. in physics and worked for various employers using that degree. During the last few years before the parties’ separation, Zhao was working as a translator and as a Chinese-language customer service representative, and for a few months worked a second job as a hotel manager. Prior to their separation, the parties resided in a home with a monthly mortgage payment of over $1,800. In 2009, the parties began living separately, and in 2012 Xu filed for divorce.

¶3        After the petition for divorce was filed, Xu submitted financial declarations and supporting documentation, informing Zhao and the court that he earned $6,080 per month, and that he had monthly expenses of $5,987.31, including the $1,800 monthly mortgage payment. For her part, Zhao also completed a financial declaration, but claimed she had no income whatsoever and that her family members helped cover her monthly expenses, which she estimated amounted to $3,383.57, including a $650 housing expense. Zhao provided some documentation for a few of her expenses, but failed to provide any documentation for her claim that she had no income.

¶4        After reviewing Zhao’s financial declaration, Xu made discovery requests asking Zhao to produce bank statements and tax returns. Zhao refused to comply with these requests, and Xu asked the trial court to order Zhao to produce the documents, which request the trial court granted. When Zhao failed to comply with the court’s order, the court imposed a “discovery sanction” to the effect that Zhao would “not [be] permitted to introduce evidence in opposition to [Xu’s] evidence of her income.” In accordance with this sanction, the court ultimately barred Zhao from introducing evidence of her income at trial.

¶5        The case eventually proceeded to a bench trial, which was held in 2015. At trial, Xu revealed for the first time that he had recently been fired from his job, and attempted to introduce a new financial declaration indicating that he had no income other than unemployment benefits. However, during closing argument, when the court asked Xu’s attorney how it should “deal with [Xu’s] income,” Xu’s attorney responded by stating that the court should impute income to Xu based on his employment history, asserting that $60,000 to $79,000 would be a reasonable range, and asking the court to “place [Xu’s] income at $60,000 per year.” Xu also presented evidence of Zhao’s income, which, per the discovery sanction, Zhao was not permitted to rebut. Xu presented evidence that, prior to their separation, Zhao had earned $2,150 per month at her primary job and $1,500 per month at a part-time, secondary job. At the conclusion of the trial, the court took the matter under advisement.

¶6        A few weeks later, the court issued findings of fact and conclusions of law. Although Xu had maintained he was unemployed, the court found that Xu had an “extended history of working at jobs ranging in annual pay from $60,000 to $89,000,” and “[b]ased on such history” the court imputed income to Xu in the amount of $76,000 per year, or $6,333 per month. The court further determined that Xu’s claimed expenses were overstated, in part because the court refused to grant Xu the $1,800 housing allowance on the ground that the parties could not afford to live at the premarital standard of living and because the court ordered that the marital home should be sold. Ultimately, the court determined that Xu’s monthly expenses were $3,865.89, and that Xu’s imputed income exceeds his expenses by over $2,400 each month.

¶7        The court imputed Zhao’s income for her primary job at $2,150 per month, but declined to consider her income from her secondary job, reasoning that her “need should not be based on working a second job any more than [Xu’s] ability to pay should be.” In assessing Zhao’s expenses, the court determined that Zhao’s $650 housing expense was acceptable because “there is not enough money for both parties to continue to live at [the marital] standard of living.” Ultimately, the court determined that Zhao’s monthly expenses were $3,033.57, and that Zhao therefore had a monthly unmet need of $883.57 per month. In the end, the court ordered Xu to pay monthly alimony to Zhao, and the court set that amount at $1,600 per month for four years, and then $1,200 per month for another thirteen years.

¶8        After the trial court issued these findings, Xu filed a motion asking the court to amend its findings of fact and the resulting alimony calculation. In his motion, Xu first pointed out—citing Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (stating that a “spouse’s demonstrated need must . . . constitute the maximum permissible alimony award”)—that the ceiling for any alimony award was Zhao’s unmet need, which the court had already determined was $883.57, and that any alimony award higher than that was improper. Xu also challenged some of the court’s specific determinations regarding the parties’ income and expenses. Specifically, Xu argued that Zhao had not done enough to prove her $650 monthly housing expense, which Xu asserted should be “removed” from her list of expenses. Next, Xu argued that the court should have considered Zhao’s second job when determining her income. Finally, Xu argued that the court should not have imputed him income based on his work history, because the court had not made a finding that Xu was voluntarily underemployed and had not made any findings that the job market would allow Xu to actually make $76,000 per year.

¶9        In response, Zhao argued that the trial court’s alimony determination was adequately supported by its factual findings, and posited that the court would have been within its discretion to determine that her expenses were in fact much higher than it had previously found. For example, Zhao noted that her current standard of living was well below the standard of living she enjoyed during the marriage, and that the court had nonetheless determined that her monthly housing expenses were $650 (the amount she claimed to be paying at the time of the trial) and not $1,800 (the amount the parties had paid on their mortgage on the marital home). Zhao also suggested that the parties’ respective standard of living could be “equalized” simply “by allocating them the exact same amount in current expenses,” and argued that her monthly expenses should be raised from $3,033.57 to $3,865.80 to match Xu’s. Xu filed a reply memorandum responding to these arguments.

¶10        At oral argument on the motion, the court addressed its decision to impute income to Xu at $76,000, and noted that it had made that imputation after it reviewed Xu’s work history and found that, while Xu did “have periods where he [was unemployed],” Xu was “always, in the past, able to get back” to full employment relatively quickly. The court also considered whether it should impute income to Zhao on the basis of her secondary job. Here, Xu argued that Zhao should be imputed income based on both of the jobs she held prior to separation because her lack of disclosure crippled the court’s ability to “really know how much she was receiving, how much she was spending, [and] what the source of those funds were.” Xu acknowledged that while “it’s hard to look back [several] years and say that it’s relevant today,” the evidence of Zhao’s income at the time of the separation was “all the [c]ourt had” due to her discovery noncompliance. The court apparently agreed with that argument, noting that it had decided that, “as a sanction,” Zhao would not be allowed to contradict evidence Xu produced regarding her income and that this sanction may well justify a decision to impute Zhao income from her second job. Finally, the court allowed both parties to present argument related to whether it correctly imputed their expenses in its initial findings.

¶11        After the hearing, the court issued amended findings of fact and conclusions of law. In these amended findings, the court refused to alter its previous decision to impute to Xu an annual income of $76,000, but did explain its decision in more detail. The court noted that Xu’s unemployment was a “temporary” condition and that Xu’s “work history demonstrated him to be resourceful and able to acquire new employment in his field.” Because of this, and because of Xu’s work history “working at jobs ranging in annual pay from $60,000 to $89,000,” the court again set Xu’s income at $76,000 per year, or $6,333 per month. However, the court did alter its previous conclusion regarding Zhao’s secondary job, and this time determined to assign to Zhao income received from a secondary job at a rate of $1,500 per month, which when added to her other income of $2,150 meant that Zhao’s imputed monthly income, for the purposes of the alimony calculation, was $3,650. Finally, the court elected to raise both Xu’s and Zhao’s housing expenses to $1,800 per month to allow both of them “to enjoy the same standard of living [they] had during the marriage.” The court declined to raise any of Zhao’s other expenses (such as medical expenses, utility bills, and insurance expenses) to match Xu’s expenses. Using these numbers, the court determined that Zhao’s monthly expenses were $4,183, leaving her with an unmet monthly need of $533.37. The court determined that Xu could meet that need, and therefore ordered Xu to pay Zhao $534 in monthly alimony.

ISSUES AND STANDARDS OF REVIEW

¶12        Both parties appeal from the court’s alimony determination, each raising two issues for our review.

¶13        First, Xu contends that the trial court erred when it determined, in its amended findings, that Zhao’s monthly housing expense was $1,800. “The trial court in a divorce action is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified). Thus, we will not disturb a trial court’s determinations unless they are “clearly unjust or a clear abuse of discretion.” Id. (quotation simplified).

¶14      Second, Xu contends that the trial court erred when it set his income at $76,000 per year. “Trial courts have considerable discretion in determining a spouse’s income, and determinations of income will be upheld on appeal absent an abuse of discretion.” Leppert v. Leppert, 2009 UT App 10, ¶ 7, 200 P.3d 223.

¶15        For her part, Zhao contends that the trial court erred when, relying on the discovery sanction, it included income from a second job in her income calculation. Again, we review a trial court’s determination of a spouse’s income for abuse of discretion. Id.

¶16      Next, Zhao contends that the trial court erred when it did not equalize all of her imputed expenses with Xu’s. Trial courts have “considerable discretion” in determining the financial and property interests of parties and we will disturb such determinations only if they are “clearly unjust or a clear abuse of discretion.” Goggin, 2013 UT 16, ¶ 26 (quotation simplified).

ANALYSIS

A

¶17        Xu first contends that the trial court erred when it determined that, in order to help raise her to the same standard of living the parties enjoyed during the marriage, Zhao’s monthly housing expense should be considered to be $1,800. Xu challenges the trial court’s determination on both procedural and substantive grounds.

¶18        Xu’s procedural complaint is premised on the assumption that the trial court originally assessed Zhao’s housing expenses as $650, and then sua sponte raised those expenses to $1,800 without giving Xu a chance to be heard on the matter. Xu asserts that no party “ask[ed] the [trial] court to find the housing expense to be that high,” and therefore concludes that the trial court acted on its own motion, and contrary to due process, by raising Zhao’s housing expenses. Xu notes that while he asked the court to amend its findings of fact, “Zhao did not file a motion or counter motion for additional findings of fact or a new trial in which she requested the Court to raise her housing expense, and Xu did not have an opportunity to oppose any such motion.”

¶19        The record, however, does not support Xu’s argument. As an initial matter, it was Xu who—in his motion to alter the trial court’s findings—directly challenged the $650 housing expense the trial court originally assigned to Zhao, and even implied that the court should “remove” that expense from its calculation entirely. Then, in her response, Zhao raised the argument that $1,800 might be a better reflection of her monthly housing expenses because it was in keeping with the parties’ standard of living prior to separation, and Xu had the opportunity to respond to that argument—and did in fact respond to it—in his reply memorandum. Thus, Xu put the issue of Zhao’s housing expense before the court in the first instance, elicited a responsive counter-argument from Zhao that reflected the reasoning which eventually swayed the court, and had the opportunity to respond to that counter-argument in a reply brief. On this record, Xu has failed to persuade us that the trial court raised the issue sua sponte, or that Xu had anything less than a full and fair opportunity to address the issue.[1]

¶20        Substantively, Xu asserts that the trial court abused its discretion in setting Zhao’s monthly housing expense at $1,800 for three reasons. First, Xu argues that the trial court acted improperly by setting the parties’ housing expense based on what they were paying at the time of their separation, but setting many of their other expenses based on their estimates of their post-separation financial needs. Xu argues that, because the court initially calculated his and Zhao’s expenses as of the time of separation, the court “opt[ed] to adopt the standard of living existing at the time of trial” as its time frame for assessing the parties’ expenses and was therefore foreclosed from including a pre-separation housing expense in its calculation.

¶21        We disagree, because 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. See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (stating that “[a]s a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony,” but noting that “the court shall consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial”); see also Kidd v. Kidd, 2014 UT App 26, ¶ 24, 321 P.3d 200 (noting that trial courts should “avoid focusing on actual expenses alone when assessing need because the expense level during separation may be necessarily lower than needed to maintain an appropriate standard of living for various reasons,” and encouraging courts to consider “the standard of living during the marriage” as well as the expenses during separation (emphasis added) (quotation simplified)).

¶22      Second, Xu asserts that the trial court abused its discretion in setting Zhao’s monthly housing expenses at $1,800, because the “the evidence and testimony” on the record “cannot . . . support[]” that figure. Xu argues that Zhao “presented a financial declaration . . . reflecting that the rent on her residence . . . was $650 per month,” and that no evidence supported assigning a higher expense to her. Xu acknowledges that $1,800 was the approximate amount of the mortgage payment on the marital home prior to separation. Nonetheless, Xu argues that, to justify assigning that amount as Zhao’s monthly housing expense, the court would need to make additional findings “that Zhao needed to spend $1,800 per month . . . to live comfortably or to live at any particular level,” and asserts that the court made no such findings.

¶23        We see the matter differently. We first note that the trial court did in fact find that its assigned housing expense reflected that Zhao “would be required to spend at least two times as much as she now pays in rent” in order “to enjoy the same standard of living she had during the marriage.” We construe that statement to be a finding by the trial court that Zhao required the higher housing expense in order to live at a particular level—the level she enjoyed during her marriage. Second, we note that Xu cites to no case law—and we are aware of none—supporting his contention that a court, in determining alimony, must first make a finding that the parties need a specific expense item in order to “live comfortably” or “at any particular level” before determining to assign individual expenses as of the date of separation rather than as of the date of trial. Indeed, while the alimony statute encourages courts to consider the standard of living that “[existed] at the time of separation” in determining alimony, it does not require the court to make specific findings explaining how each imputed expense contributes or fails to contribute to that standard of living. Utah Code Ann. § 30-3-5(8)(e). We conclude that all of the evidence in the record—including, among other things, that the parties’ spent $1,800 per month for housing during the marriage—is sufficient to support the trial court’s amended finding regarding Zhao’s housing expense.

¶24      Finally, Xu asserts that setting Zhao’s housing expense at $1,800 was unwarranted because that amount was being spent, prior to separation, to house the entire family, and not just Zhao. We are unpersuaded, for two reasons. First, we note that Xu specifically asked the trial court to set his housing expense at $1,800, even though he was also living alone, because he was living in the same house in which the parties had lived during the marriage. Where one spouse asks the court to set his housing expense to reflect his perceived needs and the court has no evidence that the other spouse has significantly different needs, it is not improper for the court to set the housing expense for both spouses at the amount requested. Cf. Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (noting that, when a husband asked for a higher housing allowance than his wife, and where there was no “claim or evidence that [the husband’s] and [the wife’s] reasonable housing needs differed or were wildly different than the housing they enjoyed during their marriage,” this court saw “no impropriety in the trial court’s decision to impute housing needs to [the wife] in the same amount as [the husband] had claimed was reasonable for him”). Second, we note that it is not an abuse of discretion for a trial court to calculate divorcing spouses’ housing expenses by trying to determine what each spouse would need to live in a home of the same size and value as the marital home. See Farnsworth v. Farnsworth, 2012 UT App 282, ¶¶ 14–15, 288 P.3d 298 (holding that when a wife was “accustomed to living in a single-family home on property suitable for keeping horses,” setting her housing expense at the amount that would be required to place her in a different home of that variety was “the appropriate measure of her housing needs”). Thus, the trial court did not abuse its discretion by setting Zhao’s housing expense at the amount Xu had requested be allotted for his own housing, nor did it abuse its discretion by setting Zhao’s housing expense at the amount she would theoretically need to continue to live in the type of home she enjoyed during her marriage: a single-family home similar to the marital home in which Xu continued to reside.

¶25        Part of the purpose of alimony is to “get the parties as close as possible to the same standard of living that existed during the marriage,” and “to equalize the standards of living of each party.” See Richardson v. Richardson, 2008 UT 57, ¶ 7, 201 P.3d 942. The trial court’s decision to amend its findings to raise Zhao’s housing expense from $650 to $1,800 was supported by competent evidence, and furthered these purposes of alimony. Accordingly, we find no abuse of discretion in the trial court’s determination.

B

¶26 Xu next contends that the court erred when it set his income at $76,000 per year, despite his testimony during trial that he was unemployed. While Xu initially argued in his brief that the trial court was unjustified in imputing him income based on his prior work history, he acknowledged at oral argument that he waived any challenge to the court adopting an imputation methodology when his counsel advocated for it at trial.[2] Indeed, at trial, Xu’s counsel appropriately invited the court to assign income to Xu based on his employment history, indicated that $60,000 to $79,000 would be a reasonable range of income to consider, and asked the court to set Xu’s income at $60,000. In light of this concession, Xu has narrowed his argument to assert that the court was not justified in assigning Xu an income figure of $76,000 (as opposed to $60,000).

¶27      “When determining the appropriate amount of alimony, a

trial court must make findings as to the ability of the payor spouse to provide support.” Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (quotation simplified). When doing so, the court shall base its income determination “upon employment potential and probable earnings as derived from” a long list of factors, including “work history.” Fish v. Fish, 2010 UT App 292, ¶ 14, 242 P.3d 787; see also Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (noting that where a spouse “has experienced a temporary decrease in income, his historical earnings must be taken into account in determining the amount of alimony to be paid”). In this case, Xu’s counsel invited the trial court to impute Xu’s income based on his work history. The court did so and, after determining that Xu had an “extended history of working at jobs ranging in annual pay from $60,000 to $89,000,” and reasoning that Xu’s “work history demonstrated him to be resourceful and able to acquire new employment in his field,” assigned Xu an income figure of $76,000, a figure that was well within both the range of income demonstrated by Xu’s work history and the somewhat lower range suggested by Xu’s counsel at trial.

¶28      On this record, the trial court did not abuse its discretion by imputing Xu annual income of $76,000.

C

¶29        On her cross-appeal, Zhao first contends that the trial court abused its discretion when it altered its initial calculation of her income to also reflect income from a secondary job. Zhao alleges that this was an abuse of discretion because the only “evidence before [the] court was that Zhao could not even find one job let alone a second,” and that there was no evidence that she had worked in any job since 2009. Further, Zhao argues that the only evidence regarding any second job was in reference to an eight-month period in which she worked as a hotel manager, and Zhao asserts that drawing long-term conclusions from an eight-month work history is improper. Accordingly, Zhao argues that she should not have been imputed any income, and especially should not have been imputed income from both a primary and secondary job.

¶30      While under ordinary circumstances a court’s inclusion of income from a second job under the conditions Zhao describes would give us pause, here Zhao fails to take into account the impact of the discovery sanction the court applied to her with regard to her income information. During discovery, Zhao refused to provide any documentation (bank statements, tax returns) to substantiate her claim that she was not receiving any income, despite being ordered to do so by the court. As a result, the court eventually imposed a discovery sanction, noting that Zhao would not be able to contradict any evidence of her income that Xu was able to introduce. In this case, Xu introduced evidence that, prior to the separation, Zhao had held both a primary and secondary job, and that Zhao was working both of those jobs at the time the parties separated. Based on this evidence, the trial court inferred that Zhao continued to work those (or similar) jobs after the parties’ separation, and due to her discovery violations Zhao was prohibited from contradicting this evidence at trial.

¶31        This case is similar to Breinholt v. Breinholt, 905 P.2d 877 (Utah Ct. App. 1995). In that case, a trial court granted a divorce to a husband and wife, and issued findings of fact and conclusions of law concerning alimony. Id. at 878–79. The husband was working two jobs at the time of the alimony calculation, but the court declined to consider his income from the second job, reasoning that it should “consider only the income from the equivalent of one . . . full-time job” when calculating its support award. Id. at 880 (quotation simplified). On appeal, this court disagreed, holding that “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. Id. (quotation simplified). Accordingly, we held that it was an abuse of discretion for the court to decline to consider the husband’s income from his second job. Id.

¶32        Here, Xu presented evidence that Zhao worked two jobs at the time of separation, and asked the court to infer that Zhao continued to be so employed between the separation and the trial. Because of her discovery misdeeds, Zhao was not permitted to contradict this evidence. While the trial court initially seemed to support Zhao’s position, it later reasoned that, “because of the discovery sanction,” it was justified in imputing Zhao’s income at the last documented level she had received, including both of her jobs. In this unique situation, the trial court did not abuse its discretion when, pursuant to the discovery sanction, it elected to impute Zhao income from both the primary and secondary jobs she held during the last time her income was documented.

D

¶33        Finally, Zhao contends that the trial court abused its discretion when it elected to equalize her housing expense with Xu’s but declined to equalize their other expenses, including utility expenses, medical expenses, and insurance expenses. Zhao argues that these expenses must be equalized to allow her to enjoy “the same standard of living” as Xu.

¶34      We disagree. While Zhao is correct that the “primary aims of alimony” include bringing “the parties as close as possible to the same standard of living that existed during the marriage, or otherwise equalizing the parties’ standards of living,” Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (quotation simplified), we have consistently discouraged trial courts from “simply attempting to equalize the parties’ income, rather than going through the traditional needs analysis,” when determining alimony, id. (quotation simplified). “This is so because, regardless of the payor spouse’s ability to pay,” alimony should be limited by the recipient spouse’s “demonstrated need.” Id. (quotation simplified). Because different people may pay different amounts to enjoy the same standard of living, simply electing to equalize all of the parties’ expenses is inappropriate for an alimony calculation. Id.; see also Willey v. Willey, 951 P.2d 226, 231–32 (Utah 1997) (upholding a trial court’s refusal to impute medical expenses at a value not justified by a payee spouse’s demonstrated need, and reversing a court of appeals holding to the contrary).

¶35        In this case, as the trial court observed, Xu’s and Zhao’s basic expenses differed. As indicated by their financial declarations, they spent different amounts on their medical care, utility bills, insurance, and several other recurring expenses. However, the mere fact that Zhao spent less than Xu on, for example, medical care does not in and of itself prove that Zhao needed to spend more in order to enjoy the same standard of living as Xu did. While large expenses like mortgage payments tend to be borne equally by marital partners, other expenses (like those required for medical care) often vary greatly from person to person. The trial court did not abuse its discretion by refusing to impute Zhao expenses that matched Xu’s expenses dollar-for-dollar on every line-item.

CONCLUSION

¶36      The trial court did not abuse its discretion by determining that Zhao’s monthly housing expenses were $1,800, imputing income to Xu at $76,000 per year, imputing additional income to Zhao based on her second job, or by declining to impute equal expenses to both Xu and Zhao in every category. We therefore affirm the trial court’s alimony calculation.

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

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[1] To the extent that Xu is asserting that a trial court, when asked to reconsider one of its findings, is bound to either (a) leave the finding undisturbed or (b) change the finding to exactly what the movant requests, we find that argument unconvincing. Once a movant asks a trial court to reconsider a finding or conclusion, the trial court retains discretion to reassess that finding or conclusion in its entirety. Cf. County Board of Equalization of Salt Lake County v. Tax Comm’n ex rel. Schneiter Enters., 899 P.2d 1228, 1230 (Utah 1995) (stating that once a party raises an issue before a reviewing body, the reviewing body is “entitled to rule on precisely the issue [the movant] presented,” even if that places the movant in a worse position than he was prior to his motion).

[2] We note that even if Xu had not agreed to the use of his work history to impute his income, the trial court would have been within its discretion to forbid Xu from introducing any evidence that he was unemployed, because Xu opted not to disclose that fact until the day of trial. Because Zhao had no reason to believe that Xu was unemployed prior to trial, Zhao had no opportunity to prepare for imputation-of-income arguments prior to trial.

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What Is Alimony, and How Does It Work in Utah?

What is Alimony?

Alimony is a legal obligation imposed by court order upon one spouse in a separate maintenance action or divorce action to provide financial support for the other spouse. Through an alimony award the court can require that one ex-spouse continue to provide financial support to the other ex-spouse so that the alimony recipient can maintain the standard of living (or close to that standard of living) that the ex-spouse enjoyed during the marriage.

Alimony is also sometimes called “spousal support” or “spousal maintenance,” but often a court may distinguish between alimony and spousal support by calling “alimony” an amount of money a court orders one ex-spouse to pay the other ex-spouse and calling “spousal support” an amount of money a court orders one spouse to pay the other spouse on a temporary orders or “pendent lite” basis while a divorce or separate maintenance case is pending in the court.

Alimony and Child Support Are Different Things

Keep in mind that alimony and child support are different things. Child support and alimony are two separate financial obligations created for two separate purposes. While the purpose of alimony is to provide financial support for the former spouse after divorce, child support is an obligation for the financially support of their children after divorce.

Factors that Affect Whether Alimony is Awarded and If So, How Much is Awarded and for How Long

Alimony is not awarded in every divorce. Whether alimony is awarded depends on many factors.

Utah has no fixed formula for determining how much alimony should be paid and for how long. In Utah alimony may be ordered to last for a period equal to the entire length of the marriage (for example: if the marriage lasted for 8 years, one spouse may be required to pay alimony for the next 8 years following the divorce).  In other cases alimony may be ordered for a period shorter than the marriage (in some cases a much shorter period), with the court awarding the alimony recipient alimony long enough to help the recipient get education or job training with the goal of the alimony recipient becoming financially independent and able to support himself/herself.

Factors that may improve one’s chances of obtaining an alimony award are found in Utah Code § 30-3-5(8):

  • the financial condition and needs of the recipient spouse;
  • the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  • the ability of the payor spouse to provide support;
  • the length of the marriage (alimony is more likely to be awarded in divorce cases where the parties have been married around 10 years or more (but even in very short marriages alimony can be awarded, but alimony awarded at the end of short-term marriages is rare and exceptional);
  • whether the recipient spouse has custody of a minor child requiring support;
  • whether the recipient spouse worked in a business owned or operated by the payor spouse; and
  • whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
  • the fault of a party or of the parties in determining whether to award alimony and the duration of the alimony award.
    • “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
    • engaging in sexual relations with a person other than the party’s spouse;
    • knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child
    • knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or
    • substantially undermining the financial stability of the other party or the minor child.
  • As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony; however, the court must consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial.
  • In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
  • In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
  • The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
  • When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time before termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time (Utah Code § 30-3-5(8)(j)).

Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined (Utah Code § 30-3-5(9)).

Alimony terminates upon establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another person, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony, so long as the party ordered to pay alimony petitions to terminate alimony no later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another person (Utah Code § 30-3-5(10)(a) and (b)).

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

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What is Alimony and How Does It Work in Utah?

What is Alimony?

Alimony is a legal obligation imposed by court order upon one spouse in a separate maintenance action or divorce action to provide financial support for the other spouse. Through an alimony award the court can require that one ex-spouse continue to provide financial support to the other ex-spouse so that the alimony recipient can maintain the standard of living (or close to that standard of living) that the ex-spouse enjoyed during the marriage.

Alimony is also sometimes called “spousal support” or “spousal maintenance,” but often a court may distinguish between alimony and spousal support by calling “alimony” an amount of money a court orders one ex-spouse to pay the other ex-spouse and calling “spousal support” an amount of money a court orders one spouse to pay the other spouse on a temporary orders or “pendent lite” basis while a divorce or separate maintenance case is pending in the court.

Alimony and Child Support Are Different Things

Keep in mind that alimony and child support are different things. Child support and alimony are two separate financial obligations created for two separate purposes. While the purpose of alimony is to provide financial support for the former spouse after divorce, child support is an obligation for the financially support of their children after divorce.

Factors that Affect Whether Alimony is Awarded and If So, How Much is Awarded and for How Long

Alimony is not awarded in every divorce. Whether alimony is awarded depends on many factors.

Utah has no fixed formula for determining how much alimony should be paid and for how long. In Utah alimony may be ordered to last for a period equal to the entire length of the marriage (for example: if the marriage lasted for 8 years, one spouse may be required to pay alimony for the next 8 years following the divorce).  In other cases alimony may be ordered for a period shorter than the marriage (in some cases a much shorter period), with the court awarding the alimony recipient alimony long enough to help the recipient get education or job training with the goal of the alimony recipient becoming financially independent and able to support himself/herself.

Factors that may improve one’s chances of obtaining an alimony award are found in Utah Code § 30-3-5(8):

  • the financial condition and needs of the recipient spouse;
  • the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  • the ability of the payor spouse to provide support;
  • the length of the marriage (alimony is more likely to be awarded in divorce cases where the parties have been married around 10 years or more (but even in very short marriages alimony can be awarded, but alimony awarded at the end of short-term marriages is rare and exceptional);
  • whether the recipient spouse has custody of a minor child requiring support;
  • whether the recipient spouse worked in a business owned or operated by the payor spouse; and
  • whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.
  • the fault of a party or of the parties in determining whether to award alimony and the duration of the alimony award.
  • “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
  • engaging in sexual relations with a person other than the party’s spouse;
  • knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child;
  • knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or
  • substantially undermining the financial stability of the other party or the minor child.
  • As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony; however, the court must consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial.
  • In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.
  • In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.
  • The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.
  • When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time before termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time (Utah Code § 30-3-5(8)(j)).

Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio, payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined (Utah Code § 30-3-5(9)).

Alimony terminates upon establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another person, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony, so long as the party ordered to pay alimony petitions to terminate alimony no later than one year from the day on which the party knew or should have known that the former spouse has cohabited with another person (Utah Code § 30-3-5(10)(a) and (b)).

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

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Alimony: How much of it should I be asking for, and why?

How much alimony should I be asking for from my spouse? He’s very wealthy, and I do not work. I became a stay-at-home parent at his request. I’m now leaving the marriage without any retirement or savings.
Here is a simple way to analyze whether you should receive alimony, and if so, how much alimony, in Utah (where I practice divorce law):

First, Utah Code Section 30–3–5(8–10) describes some of the factors the court must consider in determining alimony. Those factors are:

  • the financial condition and needs of the recipient spouse;
  • the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse;
  • the ability of the payor spouse to provide support;
  • the length of the marriage;
  • whether the recipient spouse has custody of a minor child requiring support;
  • whether the recipient spouse worked in a business owned or operated by the payor spouse; and
  • whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage.

In a nutshell: you must show a need for alimony and that your husband has the ability to pay it.

The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony. “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

  • engaging in sexual relations with a person other than the party’s spouse;
  • knowingly and intentionally causing or attempting to cause physical harm to the other party or a minor child;
  • knowingly and intentionally causing the other party or a minor child to reasonably fear life-threatening harm; or
  • substantially undermining the financial stability of the other party or the minor child.
  • As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony. However, the court shall consider all relevant facts and equitable principles and may, in the court’s discretion, base alimony on the standard of living that existed at the time of trial. In marriages of short duration, when no child has been conceived or born during the marriage, the court may consider the standard of living that existed at the time of the marriage.

The court may (may, no must) under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

When a marriage of long duration dissolves on the threshold of a major change in the income of one of the spouses due to the collective efforts of both, that change shall be considered in dividing the marital property and in determining the amount of alimony. If one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage, the court may make a compensating adjustment in dividing the marital property and awarding alimony.

In determining alimony when a marriage of short duration dissolves, and no child has been conceived or born during the marriage, the court may consider restoring each party to the condition which existed at the time of the marriage.

Alimony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time before termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time.

Unless a decree of divorce specifically provides otherwise, any order of the court that a party pay alimony to a former spouse automatically terminates upon the remarriage or death of that former spouse. However, if the remarriage is annulled and found to be void ab initio (meaning the marriage was found never to have been valid from the start), payment of alimony shall resume if the party paying alimony is made a party to the action of annulment and the payor party’s rights are determined.

An order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse, after the order for alimony is issued, cohabits with another person, even if the former spouse is not cohabiting with another person when the party paying alimony files the motion to terminate alimony. Bear in mind, however, that a party paying alimony to a former spouse may not seek termination of alimony for cohabitation if he/she fails to do so more than one year from the day on which the party knew or should have known that the former spouse has cohabited with another person.

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

How much alimony should I be asking for from my spouse? He’s very wealthy, and do not work. I became a stay-at-home parent at his request. I’m now leaving the marriage without any retirement or savings.

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