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Tag: alimony

Is this a first principle?

If you can get a no-fault divorce, meaning that you can just walk away from a marriage because you don’t want it anymore, why could that same person seek alimony?

You have a right to rescind the marriage contract. But with rights come responsibilities. The right to walk away from a marriage on no-fault grounds must entail the corresponding responsibility to take the bitter with the sweet. No more marriage means no more spouse, and no more obligation of your ex-spouse to support you financially. Isn’t rescinding the marriage contract on no-fault grounds and still demanding that the other party continue to perform as though nothing has changed just licentiousness?

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

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I Was Just Laid Off, Through No Fault of My Own, and Don’t Know How Soon I’ll Find Work Again or How Much I Might Actually Earn Once I Do. How Do I Get the Court to Reduce or Terminate My Alimony Obligation?

A reduction in the alimony award obligation is extremely difficult to obtain. It’s designed to be difficult to modify downward, so that only those who 1) are truly unable to pay, and/or 2) can prove there is no longer a need to pay, receive relief.
And as you can imagine, even if you believe you have a strong case for alimony reduction or termination, your ex will likely resist your efforts by every means available to him/her.
To get a reduction, you need to prove that your income has decreased on a non-temporary basis due to no fault of your own and/or that the alimony recipient’s need to be paid alimony has decreased or no longer exists.
Losing your job is usually not enough to obtain a reduction or elimination of alimony. If you can also show that your job cannot be replaced or cannot be replaced at the same level of income that your lost job paid, you may have some hope of obtaining an order reducing or eliminating your alimony obligation. Otherwise, mere loss of a job will not be enough. It’s expected and anticipated that people who lose their jobs will find a new job making essentially the same amount of money in most situations.
Has your ex-spouse’s income increased to the point that he/she can support herself at the lifestyle to which he/she was accustomed during the marriage? Or has he/she voluntarily reduced his/her lifestyle expenses? If so, and if you can prove it, you may be able to persuade the court to terminate or reduce your alimony obligation on the basis that the need for alimony has decreased or even ceased to exist.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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Why Hiding Your Money in a Divorce and/or Child Support Court Case Won’t Work (and why people still try) By Braxton Mounteer

When those who will be ordered to divide assets with a spouse and/or pay child and/or spousal support (alimony) confront the matter, many try to lie about and to misrepresent their finances and their income in the hope they can avoid paying. Few involved in the support calculation effort–from the would-be support recipient to the court–believes one would tell the truth about his/her income, and this is doubly true for child support obligors who are self-employed. While it is tempting to lie about your income in the hope of receiving more than you should or paying less than you should, that’s wrong (and it most likely would not work anyway).

There are several ways one can try to hide and misrepresent income and assets during a divorce case.

  • hide physical cash in the proverbial mattress or mason jar buried in the backyard
  • hide it in a safe deposit box no one knows of but you
  • hide money in a trust account, in an account opened in the name(s) of your child(ren) or another person, in an offshore account
  • overpay taxes
  • defer salaries or commissions
  • fake debt

The deadbeat dad strategy works like this, you spend all your time working and thus generate income. However, you hate your former spouse and even though you don’t have the time with your kids that you would like you still want to provide for them. So, to avoid paying your former spouse anything, you hide your money in a trust or in an unknown bank account (or some other degree of hiding your cash like skimming or filtering) that they don’t know about. You filter your cash through several fronts (friends, family members, false debt, overpaying taxes) and after the lengthy process of laundering your money, you receive it.

 How do you enjoy the hard-earned cash that you have cleaned your name from? You don’t. You have wandered into the Walter White problem. You have money you can’t spend because that would unravel the lie. You will have to keep this lie going for 18 years, and then hope that your children forgive you in your golden years for the hardship that you put them through during their childhood (this depends on the level of poverty that you have claimed).

The housewife strategy works like this, you spend your time caring for the house and the children and generate no income. You get access to your spouse’s money either through an allowance or through direct access. You then skim off the top every time you pay a bill or get groceries or something similar. This is done through cashback or keeping the change if you are given physical cash. This adds up over time and must be started several years before your divorce. You store your nest eggs either in the form of valuables, or in physical cash. You could get a safety deposit box or a safe or hide the cash in the marital home (under floorboards, in a wall, under the mattress, or in a vase).

How do you enjoy this money? You don’t. These nest eggs are for emergencies or for your quick exit from the marriage. This strategy is entirely dependent on your former spouse not catching on that money is going missing. Hopefully they are asleep at the wheel regarding their finances and not a penny pincher. You then have to maintain the lie and not show that you have money to buy things that your former spouse has not gifted to you. How do you retrieve the money without your spouse getting suspicious? You can’t pawn your wedding ring or fill your house with luxury goods without them noticing (a distant relative can only die so many times before its suspicious).

While both strategies have their ups and downs, both involve underreporting your income and hiding it. You will get caught because you are trying to hoodwink someone who has intimate knowledge of your financial situation. You cannot hide your offshore bank account from your wife who you took to the Bahamas to open it. You can’t hide money or valuables from your husband without tearing the house down. You won’t be able to hide your income because you are trying to lie to people who have seen every trick in the book and then some. You are also required to produce documents, such as your bank account statements and lists of your property. Your spouse will keep you honest.

You are fighting an uphill battle to avoid your legal obligation. Most people do not make enough money to warrant these strategies and if you get caught, you can lose every penny you tried to hide and then some. You can try but you will most likely fail because you do not have the skill, time, money, or ability to maintain these deceptions. Do you really think you will reinvent the wheel?

Honestly, it is easier to just tell the truth because the court can just choose to not believe you. If the lie that you have told to the court has too many holes or just isn’t up to snuff, then you could just lose anyway. You care about your children, so do not give them a reason to hate you just because you want to spite your former spouse.

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Clarke v. Clarke – 2023 UT App 160

2023 UT App 160

THE UTAH COURT OF APPEALS

EDWIN M. CLARKE,

Appellee,

v.

ANGOZI R.S. CLARKE,

Appellant.

Opinion

No. 20220067-CA

Filed December 29, 2023

Third District Court, Silver Summit Department

The Honorable Teresa Welch

No. 174500147

Cassie Medura and Jarrod H. Jennings,

Attorneys for Appellant

Julie J. Nelson and Rebecca Ross,

Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES GREGORY K. ORME and JOHN D. LUTHY concurred.

HARRIS, Judge:

¶1        After about twenty years of marriage, Edwin (Ed) and Angozi (Anne) Clarke separated in 2016, and their divorce case proceeded to a four-day bench trial in late 2020 and early 2021. Anne appeals from some of the trial court’s findings and conclusions regarding the financial aspects of the case, chiefly the court’s determination as to how much alimony Ed was ordered to pay. And she appeals the court’s denial of her motion for a new trial. We reject Anne’s arguments and affirm the court’s rulings.

 

BACKGROUND

¶2        Ed and Anne[1] married in September 1996. Ed commenced this divorce action in 2017. During their marriage, the parties had three children together, none of whom are minors now and only one of whom was a minor at the time of trial. The bulk of the pretrial litigation in this case concerned the parties’ children, but none of the trial court’s eventual rulings regarding custody are at issue in this appeal; rather, the matters at issue here are exclusively financial.

¶3        Ed is an airline pilot by trade, and in the years leading up to trial he worked for Delta Air Lines (Delta); in 2016, he was promoted to captain. Anne was also employed during the marriage; the trial court found that, since 2006, she had been “self-employed as an Independent Clothing Salesperson” affiliated with a clothing company. Prior to trial, the parties exchanged several financial disclosures, including information about their respective incomes and claimed monthly expenses. As trial approached, the court entered a pretrial order commanding that the parties exchange “[u]pdated [f]inancial [s]tatements . . . 21 days prior to the scheduled trial date.”

¶4        Trial was eventually scheduled for a three-day setting in November 2020. In keeping with the pretrial scheduling order, the parties exchanged updated financial information in the weeks prior to the scheduled trial date. Anne submitted an updated financial declaration in September 2020, therein asserting that her gross employment income was $1,674 per month (not including alimony and child support payments Ed was making pursuant to a temporary order), that her total net income (including alimony and child support, but after taxes) was $3,894 per month, and that her expenses were $8,093 per month. Regarding expenses, the form she used contained two columns for each line item, one for the “current amount” and one for “marital expenses.” Anne filled out only the “current amount” column; she left the “marital expenses” column blank.

¶5      In his final pretrial disclosures, Ed submitted an updated financial declaration indicating that his net income was $14,849 per month. Regarding expenses, Ed filled out both columns, indicating that his “current” expenses were $16,399 and that his monthly “marital expenses” had been $17,007. Ed also produced documentation supporting his assertions regarding income and expenses, including his tax returns from 2015 through 2019, as well as a paystub dated September 30, 2020 that included 2020 year-to-date income information. While Anne raised one pretrial concern with Ed’s financial disclosures, she did not litigate that concern to completion,[2] and she lodged no other objection prior to or during trial to the scope of Ed’s financial disclosures.

¶6        Trial began on November 10, 2020. The most prominent issues at trial were financial ones, chiefly Anne’s request for alimony, and much of the trial was devoted to evidence of the parties’ respective incomes and expenses. The disputes were especially pointed regarding Ed’s income and Anne’s expenses. Neither side called any financial experts to the stand; the only witnesses to offer evidence regarding the parties’ finances were the parties themselves.

¶7        Ed was on the witness stand for the better part of three days, and he offered testimony about his income. He explained that, in 2016, he was promoted to captain and thereby earned a substantial raise, and that during the years 2016 through 2018 he earned relatively consistent annual amounts, from approximately $271,000 to $292,000. In 2019, however, he earned a significantly higher salary, making approximately $349,000. He testified that, given the COVID-19 pandemic and the ensuing change in worldwide travel conditions in 2020, this 2019 pay increase was anomalous and not representative of his earning capacity at the time of trial. He explained that his 2019 income was higher than usual because, during that year, “Delta experienced a pilot shortage” that enabled him “to work significant overtime” during this “high demand time.” And he explained that the pandemic had significantly impacted Delta’s business in several ways. In 2020, there were “far too many pilots for the flight schedules being flown,” and therefore he was not able to work even pre-2019 hours, let alone the increased 2019 hours. In addition, he explained that before the pandemic, he had, as a captain, received a profit-sharing payment from Delta; that payment from 2019 had been significant, totaling over $51,000. But he testified that, given the state of Delta’s business in 2020, he was unlikely to receive any profit-sharing payment for that year, or for the foreseeable short-term future. He testified that, given these circumstances, the income that he received during September 2020—as reflected on his paystub from that month—was most indicative of his earning capacity moving forward. In his proposed post-trial findings, Ed indicated that his net monthly income was $13,358.32, based on then-current tax codes. And he testified that his marital expenses were consistent with what he had listed on his most recent financial declaration.

¶8        Anne offered very little testimony regarding her income and expenses. She did, however, testify briefly about certain business expenses that she believed should be deducted from her income for alimony purposes. She offered no testimony regarding her total net income or how it should be computed, but she indicated in written filings (including her post-trial proposed findings) that her net income from employment (not including alimony and child support) was $920 per month.

¶9        Both parties also testified that they should receive credit, or “offsets,” for previous expenditures made using their personal funds for items or matters for which they believed both parties should be equally responsible. For instance, Ed asked for reimbursement of payments he made for maintenance of the marital home and for certain child-related expenses. Anne asked for repayment of other child-related expenses and for costs incurred in moving out of the marital home around the time of separation, and she sought some sort of credit for various other instances where she alleged Ed had used her personal funds.

¶10      As the three scheduled November 2020 trial days drew to a close, it became apparent that the parties were going to need additional time to present their evidence. After some discussion, the court agreed to schedule a fourth trial day, but the parties and the court did not have mutual availability until February 2021. Thus, the court scheduled a fourth trial day for February 11, and it scheduled closing arguments to take place on March 9.

¶11      A few weeks after the closing arguments, the court issued a lengthy ruling containing its findings of fact and conclusions of law.[3] In that ruling, the court indicated that it found Ed’s testimony about his income to be credible, and on that basis determined that the years 2019 and 2020 were both anomalous with regard to Ed’s income, and that neither year was “indicative of his normal or foreseeable income.” Instead, the court determined that the most accurate measure of Ed’s earning capacity, as of the time of trial, was an average of his 2016, 2017, and 2018 earnings. The court also believed that Ed was unlikely to receive profit-sharing income from Delta “for the foreseeable future.” Thus, the court did not include profit sharing as part of Ed’s gross income calculation. Using Ed’s 2016, 2017, and 2018 tax returns and averaging the income figures found there, the court determined that Ed’s gross monthly earning capacity, for child support and alimony purposes, was $20,452.25. And the court calculated Ed’s net income “by applying current tax rates to” the gross income figure it had come up with. Using this methodology, the court calculated Ed’s net monthly earning capacity as $13,358.32. And it calculated Ed’s reasonable monthly expenses, in light of the marital standard of living, to be $10,249.46.

¶12 The court calculated Anne’s gross earning capacity by averaging her earnings from 2015 through 2019 and then concluding, on that basis, that her earning capacity was $3,158.50 per month. The court declined Anne’s invitation to subtract business expenses from that figure, noting that, under applicable law, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts,” and concluding that Anne had “failed to explain which, if any, business expenses claimed on her tax returns are necessary to allow [her clothing enterprise] to operate at a reasonable level.”

¶13      The court then noted that “[n]o testimony was offered at trial regarding” how to calculate Anne’s net income. The court found it “difficult to ascertain the amount of tax [Anne] actually [paid] based upon her income” given that Anne had “been receiving alimony during the pendency of the case” and had been “responsible for the tax consequences of her alimony income,” but due to changes in the tax code subsequent alimony payments would “be received tax-free.” Given these difficulties, the court looked to Anne’s 2017 tax return for guidance, and it determined that Anne had paid $390.35 in taxes on a monthly basis that year; it then applied that same tax-paid figure to Anne’s future income. Using this methodology, the court determined that Anne’s net monthly earning capacity was $2,768.25.[4]

¶14 In determining Anne’s reasonable monthly expenses, the court primarily relied on Anne’s most recent financial declaration. The court found Anne’s latest declaration to be more credible than earlier versions, explaining that Anne had testified that one of the earlier declarations was “inaccurate,” and opining that another one was “uncredible” because it claimed monthly expenses that were “more than the gross earnings of both Parties combined for the last full year of the marriage.” For the most part, the court found the expenses claimed in Anne’s most recent declaration “to be reasonable in light of the marital standard of living.” However, the court found that a few of the listed expenses were “post-separation debt for which [Anne was] solely responsible,” and it therefore deducted those expenses from the calculation. But without being asked to do so, the court added to Anne’s list a line item for health care expenses. With these adjustments, and based largely on Anne’s own requests, the court calculated Anne’s reasonable monthly expenses as $6,218.

¶15 Using these findings and conclusions, the court then computed Anne’s alimony award. In particular, it concluded that Anne had a monthly shortfall of $3,449.75 (the difference between Anne’s expenses and her earning capacity). And it concluded that Ed had capacity to pay $2,937.11 (the difference between Ed’s expenses and his earning capacity). The court split the difference between these figures, in an effort to “equalize the poverty,” as it were, and therefore ordered Ed to pay alimony to Anne in the amount of $3,193.43 per month. Separately, however, the court ruled that, in the event Ed did “receive profit sharing amounts” from Delta “during the years that [he] is paying alimony” to Anne, he would be required to make an additional payment to Anne of half of any such amount, after taxes.

¶16 The court also made a separate finding regarding the amount that the parties had been spending on a monthly basis during the marriage, an amount the court referred to as “the parties’ marital standard of living.” Using the expenses listed on Ed’s financial declaration as a starting point (after all, he was the only one who had filled out the “marital expenses” column on the form) and then making certain adjustments, the court concluded that the parties “marital standard of living” was $15,745.73 per month. But this figure did not play any role in the court’s mathematical calculation of Anne’s alimony award; as noted, the court calculated that amount by computing Anne’s shortfall and Ed’s ability to pay, and then by “equalizing the poverty.”

¶17      The court also made rulings dividing the parties’ property, assets, and debts, and most of those rulings are not at issue in this appeal. As relevant here, however, the court awarded Ed offsets for certain expenditures that “were used for family or child-related expenses, for which [Anne] should be equally responsible.” Anne also requested offsets, but the court declined to award them for several reasons, most notably because the court found that Anne “failed to provide credible and sufficient proof” supporting her requests. The court also concluded that Anne’s requests for offsets had not been timely asserted because they were “first mentioned in her Trial Brief (filed five days before trial)” and therefore Ed had been deprived of any opportunity to “conduct discovery on these requested offsets.”

¶18      Later, the court entered a decree of divorce incorporating its findings and conclusions. A few weeks after that, Anne filed a motion asking for a new trial or, in the alternative, for amendments to the decree. The main grievance asserted in this motion was Anne’s allegation that Ed had withheld relevant financial information indicating that his income was higher than he testified at trial. Shortly before filing this motion, Anne had obtained a copy of Ed’s 2020 W-2 form which, in her view, indicated that Ed had earned approximately $25,000 per month in gross income during October, November, and December 2020. Anne argued in her motion that Ed was in possession of this information during trial—certainly by the fourth day of trial, which was held in February 2021—but he did not inform her or the court of these developments. Anne also claimed that there existed “new evidence” showing that Ed was back to working at least some overtime hours during 2021 and that Delta was recovering from the pandemic faster than Ed had testified.

¶19      After full briefing, the court denied Anne’s motion, stating that Anne “did not prove the existence of newly discovered evidence that existed at the time of the trial (as opposed to facts or evidence that occurred subsequent to trial),” and noting that a “petition to modify is the appropriate mechanism for any pertinent changes that occur after trial.”

ISSUES AND STANDARDS OF REVIEW

¶20      Anne now appeals, taking issue with certain aspects of the court’s post-trial findings and conclusions, as well as with the court’s denial of her motion for a new trial.

¶21      As noted, all of Anne’s challenges to the court’s findings and conclusions involve financial rulings. “In divorce actions, a [trial] court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (quotation simplified); see also Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (“We review all aspects of the trial court’s alimony determination for an abuse of discretion . . . .” (quotation simplified)). “We will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion.” Gardner, 2019 UT 61, ¶ 18 (quotation simplified). “Appellants have a heavy burden to show that an alleged error falls into any of these three categories” because “we can properly find abuse only if no reasonable person would take the view adopted by the trial court.” Id. (quotation simplified).

¶22      Anne also challenges the court’s denial of her motion for a new trial. “There are two aspects to a court’s decision-making process in ruling on a motion for new trial, and there are differences in the manner in which we review each aspect.” Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 30, 502 P.3d 320 (quotation simplified), cert. denied, 509 P.3d 768 (Utah 2022). “First, a trial court must determine that there exists a problem . . . that may require a retrial.” Id. ¶ 31. Some of the grounds for retrial listed in rule 59(a) of the Utah Rules of Civil Procedure “cannot be found to exist without some sort of factual determination on the part of the trial court,” and we review any such determination for abuse of discretion. Id. But other grounds, such as “the existence of legal errors,” “require no factual determination on the part of the trial court,” and rulings on these grounds are reviewed for correctness. Id. “Second, after determining that an error or impropriety of some kind exists, a trial court must determine whether the identified errors or improprieties are significant enough to warrant a retrial.” Id. ¶ 32. And this determination is usually reviewed for abuse of discretion. Id.

ANALYSIS

¶23      In this appeal, Anne challenges two aspects of the court’s rulings regarding the parties’ finances. Chiefly, Anne takes issue with the court’s alimony award; in her view, the award was, for several reasons, not big enough. She also asks us to review the court’s decisions regarding the parties’ claimed offsets. For the reasons explained below, we reject Anne’s challenges.

I. Alimony

¶24 Anne assails the court’s alimony award on several grounds. First, she takes issue with the court’s rulings regarding Ed’s gross monthly earning capacity. Second, with regard to her own earning capacity, she challenges the denial of her request that the court take into account certain claimed business expenses.[5] Third, she asserts that the court erred in computing the parties’ net (after-tax) incomes. And finally, she assails the overall alimony computation, arguing that the court did not properly take the parties’ pre-separation standard of living into account in assessing her reasonable monthly expenses. We discuss each argument, in turn, and find none of them persuasive.

A. Ed’s Gross Earning Capacity

¶25 Anne’s challenge to the court’s rulings regarding Ed’s gross earning capacity has two parts. First, Anne asks us to review the court’s original findings and conclusions. And second, Anne takes issue with the court’s denial of her motion for a new trial.

1

¶26      After considering the evidence presented during the four-day trial, the court made findings regarding Ed’s earning capacity. In particular, it determined that Ed’s current earning capacity, viewed from the perspective of a trial that occurred in late 2020 and early 2021, was best estimated by looking at his income in 2016, 2017, and 2018. In the court’s view, Ed’s 2019 income was anomalous, because he had worked significantly more that year than in previous years, and he was unlikely to work that much in the near future. And the court determined not to use Ed’s 2020 income either, given the uncertainty in the airline industry that year due to the pandemic. The court decided that the best indicator of Ed’s current earning capacity was an average of the three years prior to these two anomalous years. And the court determined not to include Delta profit-sharing payments in the income calculation, on the basis that—at the time of trial— airlines were struggling due to the pandemic and therefore Ed was unlikely to receive any profit-sharing payments “in the foreseeable future.” Using these parameters, the court calculated Ed’s “gross monthly income” as $20,452.25.

¶27 There was ample evidence presented during the trial to support these findings and conclusions. The parties presented tax returns and paystubs setting forth Ed’s salary and other income, and Ed offered extensive testimony in this regard that the court expressly found credible.[6] The court also heard evidence regarding conditions in the airline industry in 2019 and 2020, and about the COVID-19 pandemic. The trial record therefore contains evidence sufficient to support the court’s findings regarding which years to use in the income calculation, and regarding the specific amounts computed. And where there exists evidence sufficient to support a court’s rulings regarding a divorcing couple’s finances, that ruling will be upheld on appeal, even if evidence was presented that might have cut the other way. See Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The pill that is hard for many appellants to swallow is that if there is evidence supporting a finding, absent a legal problem—a ‘fatal flaw’—with that evidence, the finding will stand, even though there is ample record evidence that would have supported contrary findings. After all, it is the trial court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts.”).

¶28 Anne resists this conclusion by asserting that the court specifically erred in excluding any profit-sharing payments from the income calculation. She points out—correctly—that Utah law defines “gross income” as including “prospective income from any source.” See Utah Code § 78B-12-203(1). But the court found— based on prevailing economic conditions existing at the time of trial—that Ed was unlikely to “receive profit sharing payments for the foreseeable future,” and on that basis chose not to include those amounts in its calculation of Ed’s income. As noted, there was evidence to support this determination, and it therefore survives Anne’s appellate challenge.

¶29 Moreover, we have held that, while trial courts must “consider all sources of income when determining alimony,” Utah law “does not dictate that all sources of income be counted as income received by a spouse for that purpose.” Eberhard v. Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. Instead, our case law “preserv[es] a [trial] court’s broad discretion to treat sources of income as the court sees fit under the circumstances.” Id. Here, the trial court certainly considered the profit-sharing component of Ed’s historical income. And after consideration, it determined not to include profit sharing in Ed’s income calculation due to unfavorable economic conditions in existence at the time of trial, but it did order—separately—that, if economic conditions improved and Ed ended up receiving profit-sharing payments from Delta “during the years that [he] is paying alimony” to Anne, Ed would be “required to pay [Anne] half” of any such payments. As Ed points out, this order has the potential to be much better for Anne, in terms of dollars received over time,

than the order she is now asserting the court should have entered. But more to the point, it was well within the court’s discretion to craft this sort of creative solution to the parties’ alimony conundrum.

¶30      In short, the trial court’s findings regarding Ed’s gross monthly earning capacity were amply supported by evidence presented during the trial, and the court’s final computations and orders were not an abuse of its discretion.

2

¶31 Next, Anne takes issue with the court’s decision to deny her motion for a new trial. In that motion, Anne asked the court to order that a new trial be held in light of information— that she claimed was new—regarding Ed’s income. In particular, Anne asserted that Ed had, during trial, withheld relevant financial information indicating that his income in late 2020 and early 2021 was higher than he testified at trial. Anne also claimed that there existed “new evidence” that Ed was back to working at least some overtime hours during 2021 and that Delta was recovering from the pandemic faster than Ed had testified. The court denied Anne’s motion, and declined her invitation to order a new trial. We perceive no error in this determination.

¶32      Under applicable rules, a new trial “may be granted to any party on any issue” for any one of several enumerated reasons. See Utah R. Civ. P. 59(a). Those reasons include “irregularity in the proceedings of the court, . . . or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial,” id. R. 59(a)(1); “newly discovered material evidence that could not, with reasonable diligence, have been discovered and produced at the trial,” id. R. 59(a)(4); “insufficiency of the evidence to justify the verdict or other decision,” id. R. 59(a)(6); and “the verdict or decision [being] contrary to law or based on an error in law,” id. R. 59(a)(7). Anne asked for a new trial under each of these subsections, and we discuss them in turn.

¶33      Rule 59(a)(1): Anne first argues that she is entitled to a new trial because of an irregularity in the proceedings. She points to Ed’s 2020 W-2 form, which she obtained in September 2021 (several months after the conclusion of the trial), and she asserts that Ed’s testimony at trial was inconsistent with that document. She characterizes Ed’s testimony as materially inaccurate, and she accuses him of being less than candid with the court.[7] Based on these assertions, she concludes that there was an irregularity in the trial proceedings sufficient to justify a new trial.

¶34 In this vein, Anne asserts that Ed had an ongoing obligation, which continued even during trial, to supplement his pretrial disclosures with up-to-date financial information. She acknowledges that Ed provided then-current financial information in his final pretrial disclosures, which the court ordered the parties to exchange some three weeks prior to trial; this information included Ed’s September 2020 paystub, including year-to-date income information. But she asserts that, despite Ed’s compliance with the court’s pretrial disclosure order, Ed violated his ongoing supplementation obligation, an event she asserts contributed to creating an “irregularity” in the trial proceedings. She points out that, even though the trial was originally scheduled to conclude over three days in November 2020, the court eventually scheduled a fourth trial day to take place in February 2021. She acknowledges that, ordinarily, a party discharges its pretrial disclosure obligations by complying with the court’s pretrial disclosure order, but she asserts that, under the unique circumstances of this case—in which trial was extended for another three months, into another calendar year—Ed became obligated to update his financial disclosures without further order of the court and without any request on her part.

¶35 We are unpersuaded. When it scheduled the fourth trial date, the court did not amend its pretrial disclosure order, or otherwise command the parties to update their financial disclosures, one more time, prior to that trial date. We also note that Anne herself did not attempt to supplement her disclosures during trial (for instance, she did not provide her own year-end 2020 financial information to Ed prior to the fourth trial date in February), nor did she complain to the trial court, during trial, about Ed’s failure to do so.

¶36 And Anne cites no statute or case law in support of the specific position she advocates. The only rules to which she directs our attention are the ones containing parties’ general disclosure and supplementation obligations. See Utah R. Civ. P. 26(d)(5), 26.1. We acknowledge Anne’s point, and certainly agree with her that, during litigation, parties have ongoing supplementation obligations regarding their discovery disclosures. But we are aware of no specific rule compelling parties to continue to provide updated financial information after the final pretrial disclosure deadline; indeed, as we understand it, trial courts often set such deadlines so that trials can proceed in an orderly fashion and facilitate assessment of the litigants’ situation as of the date of the final financial disclosures.

¶37      Moreover, in the family law context, there exists a specific remedy for situations in which a party’s income changes materially after a trial has been held and findings about the parties’ financial situation have been made: a party may file a petition to modify the existing order. See id. R. 106; Utah Code §§ 30-3-5(11)(a), 78B-12-210(8). Indeed, in this case, the trial court

denied Anne’s motion for a new trial, at least in part, because it concluded that a “petition to modify is the appropriate mechanism” for addressing “any pertinent changes” in Ed’s income that have occurred “subsequent to trial.” We agree with the trial court that, ordinarily, the petition to modify remedy is the method that should be used to address post-trial changes in divorcing parties’ financial status. That remedy remains open to Anne here, despite the court’s denial of her motion for a new trial.

¶38      For all of these reasons, we perceive no abuse of discretion, under the circumstances presented here, in the trial court’s conclusion that Ed’s failure to provide ongoing paystubs and W-2 forms he received after the court’s final pretrial disclosure deadline did not constitute the sort of “irregularity in the proceedings” that would justify a new trial.

¶39      Rule 59(a)(4): Next, Anne argues that a new trial is necessary because of newly discovered evidence. See Utah R. Civ. P. 59(a)(4). Again, she points to Ed’s 2020 and 2021 W-2 forms, as well as new evidence about Delta’s 2021 resurgence, and asserts that this evidence constitutes “newly discovered material evidence” that would justify a new trial. We remain unpersuaded.

¶40      As an initial matter, “a motion for a new trial or amended judgment cannot be based on facts occurring subsequent to trial.” In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (quotation simplified). “Otherwise, there would be no end to litigation.” Id. (quotation simplified). Some of the “newly discovered evidence” obviously fits into this category: Ed’s 2021 W-2 was not available until well into 2022, and evidence of Delta’s 2021 resurgence was not available during any of the trial dates in this case.

¶41      Ed’s 2020 W-2 form, on the other hand, may well have been available, at least to Ed, prior to the fourth and final trial date in this case, which took place on February 11, 2021. But in order to demonstrate that the evidence in question is the kind of evidence that fits within rule 59(a)(4), Anne must show that the evidence “could not, by due diligence, have been discovered and produced

at trial.” Id. ¶ 12 (quotation simplified); see also Utah R. Civ. P. 59(a)(4) (stating that, to be “newly discovered material evidence,” the evidence in question “could not, with reasonable diligence, have been discovered and produced at the trial”). In our view, Anne has not carried her burden of demonstrating that Ed’s 2020 W-2 form could not have been discovered and discussed during the February 11 trial date. Ed testified during the proceedings on February 11, and Anne’s attorney had the opportunity to ask Ed questions that day. Yet Ed was not asked any questions about his income during late 2020 or early 2021, and in particular he was not asked if his income had changed appreciably in the months since September 2020, the last month for which documentary information had been presented during the November 2020 trial dates. We are hard-pressed to conclude that information about Ed’s income during the last three months of 2020 and the first two months of 2021 “could not, with reasonable diligence, have been discovered and produced” at the February 11 trial date, when Anne had the chance to ask Ed about those issues and did not.

¶42      For these reasons, we discern no abuse of discretion in the trial court’s determination that no new trial was warranted under rule 59(a)(4).

¶43      Rule 59(a)(6): Next, Anne suggests that the trial court should have granted a new trial on the basis that there was insufficient evidence to justify its conclusions. See Utah R. Civ. P. 59(a)(6). We need not discuss this issue further, however, given our conclusions—set forth above—that sufficient evidence existed to support the trial court’s original findings and conclusions regarding Ed’s gross earning capacity.

¶44      Rule 59(a)(7): Finally, Anne asserts that the trial court should have granted a new trial because its initial findings regarding Ed’s income were “contrary to law or based on an error in law.” See id. R. 59(a)(7). But in this regard, Anne does not make any additional arguments that we have not already addressed; as noted, we perceive no legal error in the court’s findings and conclusions regarding Ed’s gross earning capacity, and no legal

error in the way the court conducted the trial, including specifically its pretrial disclosure order.

¶45 Accordingly, we see no infirmity in the court’s rulings regarding Ed’s gross earning capacity. Its initial findings and conclusions were supported by sufficient evidence, and the court did not err in denying Anne’s motion for a new trial and advising Anne to address the issues raised there, if at all, in the context of a petition to modify the decree.

B. Anne’s Business Expenses

¶46 Anne’s next challenge to the court’s alimony award involves one aspect of its ruling regarding her own earning capacity. As noted, the court determined that Anne’s gross earning capacity was $3,158.50 per month; it derived that figure by averaging her earnings from 2015 through 2019. The court declined Anne’s invitation to subtract business expenses from that figure, concluding that Anne had “failed to explain which, if any, business expenses claimed on her tax returns are necessary to allow [her clothing enterprise] to operate at a reasonable level.” Anne takes issue with the court’s refusal to subtract her claimed business expenses from her monthly gross income computation.

¶47 Under applicable statutory guidance, when a court is assessing a self-employed person’s gross income, the court shall “subtract[] necessary expenses required for self-employment or business operation from gross receipts.” Utah Code § 78B-12­203(4)(a). However, “[o]nly those expenses necessary to allow the business to operate at a reasonable level may be deducted from gross receipts.” Id. “The person claiming business expenses” bears the burden of proving that the claimed “expenses are necessary to allow the business to operate at a reasonable level.” See Ouk v. Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified). Thus, Anne bore the burden of demonstrating, at trial, that her claimed business expenses were necessary to allow her business to operate at a reasonable level. The trial court concluded that Anne failed to carry that burden.

¶48 At trial, Anne pointed to the “Schedule Cs” on her 2017, 2018, and 2019 tax returns as evidence of her business expenses. There, she claimed expenses for “Office expense,” “Supplies,” “Travel,” and “Utilities,” among other more minor items. The trial court explained its reasoning for rejecting Anne’s claim on these items. With regard to “Office expense,” the court noted that Anne “did not explain what actual and necessary business expense this would entail,” and that Anne had “admitted that she does not have an office outside her home.” With regard to “Utilities,” the court noted that Anne had acknowledged that this expense was simply “personal expenses that she is permitted to write off for tax purposes,” and that Anne was unable, during her trial testimony, to “be certain what her claimed ‘Utilities’ expenses entailed.” And with regard to “Supplies,” the court concluded that the figure Anne listed on her tax returns was confusing, because it was unclear, even after Anne’s trial testimony, whether this figure properly accounted for revenue Anne received from selling some of these supplies “at the end of each season.” Given these evidentiary deficiencies, the court found that Anne “failed to meet her burden to demonstrate that the claimed business expenses are only those necessary to allow her business to operate at a reasonable level.”

¶49 We perceive no infirmity in this determination. Anne offered very little testimony about her business expenses, and she supported that testimony only with her tax returns. In its ruling, the court identified several legitimate concerns about the persuasiveness of the evidence Anne presented, and it determined that Anne had not carried her burden of proof. Trial courts have discretion to credit, or not credit, evidence presented to them. See id. ¶ 14 (stating that “the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony” (quotation simplified)). Thus, under the circumstances of this case, the court did not abuse its discretion by finding that Anne had failed to carry her burden to prove the necessity of her business expenses.

C. Net Income Calculations

¶50      Anne’s next challenge to the alimony award involves the court’s net income calculations. She argues that, in assessing the impact of taxes on gross income, the court “miscalculated” her net income and “treated [her] differently than” it treated Ed.

¶51 Anne provided no testimony or documentary evidence regarding net income. That is, she offered the court no assistance in computing net income from the court’s gross income figures. And neither party hired an accountant or offered testimony from any other financial professional. Given these evidentiary realities, the court noted that it was “difficult to ascertain the amount of tax” Anne “actually pays,” especially given certain then-recent changes in the tax code regarding alimony. In the absence of better evidence, the court simply looked to Anne’s tax returns, which showed that, in 2017, Anne had paid $390.35 per month in combined federal and state taxes. The court then subtracted that number from its monthly gross income finding ($3,158.50), and found that Anne’s monthly net income, for alimony purposes, was $2,768.25. On appeal, Anne does not lodge any specific objection to this methodology at a conceptual level.

¶52      Instead, she complains that the court did not compute her net income in the same way as it computed Ed’s. In this, Anne is correct: the court did compute Ed’s net income in a different way. For Ed, the court simply took his gross income figure and applied a tax rate to it. As noted above, the court found that Ed’s monthly gross earning capacity was $20,452.25. The court simply applied “current tax rates” to that figure, without accounting for any potential tax deductions. Using this methodology, the court computed Ed’s monthly net income as $13,358.32.

¶53 Anne complains that using two different methodologies resulted in potential inequity: by using Anne’s actual “tax paid” figure from years past, the court accounted for any tax deductions she had taken, but by simply applying a tax rate to Ed’s gross income figure, the court did not similarly account for any tax deductions Ed might take in the future and effectively assumed that he wouldn’t take any. We take Anne’s point that, as a general matter and where possible, courts should compute divorcing parties’ net incomes for alimony purposes using the same methodology. But courts in appropriate cases may find it necessary to employ differing methodologies for computing spouses’ respective net incomes, and we cannot say that the court abused its discretion by doing so here.

¶54      In this case, there are differences between Anne’s and Ed’s situations. For starters, Anne did not offer any testimony or evidence regarding how the court should go about calculating her net income, so the court used the information it was given. More specifically, Anne did not provide the court any assistance in navigating the changes to the tax code regarding alimony. And with regard to Ed, the court would have found it difficult to use the “tax paid” figure from past tax returns, given that this figure may have included taxes paid on profit-sharing income, which the court had determined not to include in Ed’s future monthly gross income estimate. And as Ed points out, some of the key tax deductions he would have taken in past years (such as for children) would not be available to him in the future.

¶55 In our view, given the absence of any expert financial testimony, and given the paucity of assistance the parties offered the court in making these calculations, the court in this instance made findings within its discretion and supported by the evidence it was given. While we generally advise trial courts to use mirror-image methodologies to compute parties’ respective net incomes in family law cases, we cannot say that Anne has carried her appellate burden of demonstrating that the court abused its discretion by making the calculations it made.

D. Overall Alimony Computation

¶56 The final challenge Anne raises to the court’s alimony award is a more general one: she questions the formula the court used to arrive at its computation, and specifically challenges the manner in which the court assessed her reasonable monthly expenses. She notes that the court went to the trouble of making a finding regarding the parties’ overall marital standard of living ($15,745.73 per month), but she observes—correctly—that it is “unclear what role the marital standard of living then plays in the [c]ourt’s alimony determination.” And she points out that the court “did not use [this figure] as any sort of ‘baseline.’” It is not entirely clear exactly what Anne believes the court should have done with its $15,745.73 figure, but she complains that the court did not take it—and the marital standard of living—appropriately into account in assessing her expenses, and she laments that the court “based its alimony award wholly on [Anne’s] actual expenses at the time of trial.”

¶57 We see at least two problems with Anne’s argument, one general and one case-specific. At a general level, Anne misunderstands the formula that is to be used to compute alimony awards. As we recently observed, courts should not calculate alimony by simply dividing the couple’s pre-separation expenses in half. See Fox v. Fox, 2022 UT App 88, ¶¶ 18-19, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Indeed, we noted that “[t]here is usually no need for a trial court to make a separate specific finding regarding the overall ‘marital standard of living’ as measured by the total amount of money spent each month by the couple while they were married.” Id. ¶ 19. Such a finding is typically unnecessary; it is not one of the input variables that a court needs to assess before computing an alimony award.

¶58 In this case, the court did go to the trouble of making a finding about the parties’ monthly expenses prior to separation ($15,745.73). But as Anne points out, the court did not use that figure in its ultimate alimony calculation. In this case (as, we suspect, in most cases), such a finding was not necessary and only served to complicate matters. The court did not need to make this finding at all, and its failure to use the $15,745.73 figure in its alimony calculation was not error.

¶59      To be sure, trial courts may not ignore the marital standard of living when making an alimony award. The pre-separation standard of living must be taken into account, because the primary purpose of alimony is “to get the parties as close as possible to the same standard of living that existed during the marriage.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified). But the way a court should take that standard into account is by assessing a party’s claimed line-item expenses in light of that standard, and not by making an overall-expenses finding and chopping it in half. See Fox, 2022 UT App 88, ¶¶ 19–21, 24; see also Miner v. Miner, 2021 UT App 77, ¶ 20, 496 P.3d 242 (examining each of the claimed line-item expenses “with the marital standard of living in mind”). To give effect to the marital standard of living, courts should—as a general rule— assess parties’ expenses as of the time of separation and not as of the time of trial. See Rule, 2017 UT App 137, ¶ 16 (cautioning “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” (quotation simplified)). But “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 Miner, 2021 UT App 77, ¶ 18 (quotation simplified). To assist with this process, the financial declaration form often used in family law cases—and used in this case—includes two columns for each expense item, one for “current amount” and one for “marital expenses.”

¶60      And this leads us to the case-specific problem with Anne’s argument: Anne provided the court with only time-of-trial expenses, and the court gave Anne credit for more or less everything she asked for on her financial declaration.

¶61      The trial court, after making its superfluous “marital standard of living” finding, then proceeded to use the correct formula to compute Anne’s alimony award. See Fox, 2022 UT App 88, ¶ 20. As relevant here, it correctly assessed “the needs of the parties, in light of their marital standard of living.” See id. (quotation simplified). In assessing Anne’s expenses, the court simply gave Anne everything she asked for—to the dollar—in her most recent financial declaration, with only a few exceptions. The court found that a few of the listed expenses were “post-separation debt for which [Anne] is solely responsible,” and it therefore deducted those expenses from the calculation.7F8 And without being asked to do so, the court added to Anne’s list a line item for health care expenses. With regard to all the rest of Anne’s claimed expenses, the court found that these expenses were “reasonable in light of the marital standard of living.” With these adjustments, and based largely on Anne’s own requests, the court calculated Anne’s reasonable monthly expenses as $6,218.

¶62 We perceive no error in the court’s analysis of Anne’s reasonable expenses. It is significant that Anne did not provide the court, in her financial declaration or in her trial testimony, with any evidence regarding the “marital expenses” amount for her claimed line items. If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts. Any complaint on Anne’s part that the court failed to appropriately take the marital standard of living into account in assessing these expenses rings hollow when Anne herself apparently didn’t take the marital standard of living into account in making her claims, and where the court—more or less—credited Anne with all of the expenses she was claiming.

¶63      We therefore reject all of Anne’s challenges to the court’s alimony award. The court employed the proper formula, and all of its determinations were supported by sufficient evidence and were within the court’s discretion.

8. On appeal, Anne does not take issue with the court’s deduction of these post-separation debts from her expenses.

II. Offsets

¶64      The only non-alimony argument Anne raises concerns the court’s rulings regarding the parties’ claimed offsets. During trial, both parties claimed that they should each receive credits, or “offsets,” for purchases made using their personal funds that they believed both parties should be equally responsible for. Ed sought reimbursement of payments he made for maintenance of the marital home and for certain child-related expenses. For her part, Anne sought repayment of other child-related expenses and of costs incurred in moving out of the marital home, and she sought equalization for various other instances where she alleged Ed had used her personal funds. In its post-trial ruling, the court granted Ed’s requests for offsets, but declined to grant Anne’s requests. The court determined that Anne’s requests were “not credible and not proven” because Anne “failed to provide credible and sufficient proof” supporting her claims. The court also concluded that Anne’s requests for offsets had not been timely asserted because they were “first mentioned in her Trial Brief (filed five days before trial)” and therefore Ed had been deprived of any opportunity to “conduct discovery on these requested offsets.”

¶65      Anne contends that the court should not have denied her requests and granted Ed’s, and again complains that the court treated her differently than it treated Ed. She directs much of her appellate ire at the court’s secondary reason for its ruling—that Anne’s requests were not timely made—and asserts that Ed’s requests suffered from the same infirmity. While the court did note that Anne did not timely disclose her offset requests, we do not perceive that as the primary basis for the court’s denial of her requests. Rather, the court’s main concern was that Anne had not carried her burden of proving her requested offsets. By contrast, the court determined that Ed had proven his requested offsets, and that he had done so through a spreadsheet exhibit and “credible” testimony.

¶66 On appeal, Anne does little to engage with the court’s conclusion that her claims—unlike Ed’s—were “not credible and not proven.” Rather, Anne lists the offset awards and denials that she disagrees with, and she offers her view that the rulings were in error. She makes conclusory statements about who paid certain expenses, without proper record citations for those propositions. And for several of the offsets awarded to Ed, Anne claims that there was insufficient evidence, but she does not explain how or why Ed’s spreadsheet exhibit, coupled with his testimony that the court found credible, does not constitute sufficient evidence.

¶67      “An appellant bears the burden of persuasion on appeal, and this burden includes engaging with and responding to the grounds for the decision the appellant is challenging on appeal.” In re A.B., 2022 UT 39, ¶ 39, 523 P.3d 168 (quotation simplified). In this case, Anne has not carried her appellate burden of demonstrating that the court erred in its offset determinations.

CONCLUSION

¶68 The trial court’s post-trial findings and conclusions regarding alimony and offsets were all supported by sufficient evidence and were not an abuse of its discretion. And the court did not err in denying Anne’s motion for a new trial. For all of these reasons, we reject Anne’s appellate challenges.

¶69 Affirmed

 

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

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Alimony in Utah, in Simple but No Less Accurate, Easily Understood Terms

Alimony is a hotly debated subject, whether one is divorced or not. As with most controversial topics, misinformation seems to find its way into the discussion. Alimony is not nearly as complex a subject as you might think. In this article, we state what you need to know about alimony in Utah in simple—but accurate–terms.

What factors must the court consider in awarding alimony? See Utah Code § 30-3-5(10):

(a)        The court shall consider at least the following factors in determining alimony:

(i)         the financial condition and needs of the recipient spouse;

(ii)        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;

(iii)       the ability of the payor spouse to provide support;

(iv)       the length of the marriage;

(v)        whether the recipient spouse has custody of a minor child 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.

(b)        The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

*****

(d)        As a general rule, the court should look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (10)(a). 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.

(e)        The court may, under appropriate circumstances, attempt to equalize the parties’ respective standards of living.

(f)        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.

(g)        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.

Can you state the main factors for determining alimony in a nutshell? Yes. See Hansen v. Hansen (325 P.3d 864, 2014 UT App 96, ¶ 6 (Utah Court of Appeals, 2014)):

 “In fashioning an alimony award, the trial court is required to consider the payor spouse’s ability to pay and the recipient spouse’s need and ability to produce income.” Fish v. Fish, 2010 UT App 292, ¶ 12, 242 P.3d 787 (citing Utah Code Ann. § 30–3–5(8)(a)(i)–(iii) (Supp.2010) (current version at id. (LexisNexis 2013))). “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.” Id.

How is “fault” defined in the context of the alimony analysis? See Utah Code § 30-3-5(1)(b):

(b)        “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage:

(i)         engaging in sexual relations with an individual other than the party’s spouse;

(ii)        knowingly and intentionally causing or attempting to cause physical harm to the other party or a child;

(iii)       knowingly and intentionally causing the other party or a child to reasonably fear life-threatening harm; or

(iv)       substantially undermining the financial stability of the other party or the child.

If my spouse committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean my spouse cannot be awarded alimony? No, not necessarily. While a spouse’s fault rarely results in disqualifying that spouse from receiving any alimony, fault can result in less alimony being paid (in the form of less paid each month and/or paid for a shorter length of time).

If I committed “fault” as defined in Utah Code § 30-3-5(1)(b), does that mean I must pay alimony? No (at least not under current construction of Utah law). Alimony cannot be awarded against you as a purely punitive measure, although your fault could result in paying more alimony (in the form of more paid each month and/or paid for a longer length of time) than you would have paid in the absence of fault.

See Roberts v. Roberts (335 P.3d 378 (Utah Court of Appeals, 2014), 2014 UT App 211):

It is settled law in Utah that “[t]he purpose of alimony is to provide support” to the recipient spouse “and not to inflict punitive damages” on the payor spouse. See English v. English, 565 P.2d 409, 411 (Utah 1977) (citation and internal quotation marks omitted). As early as 1946, the Utah Supreme Court overturned an alimony award that was clearly intended to “compensate [the wife] for her suffering” and “teach [the husband] a lesson.” Foreman v. Foreman, 111 Utah 72, 176 P.2d 144, 153–54 (1946). The court noted that “[n]either task is properly within the issues of a divorce case.” Id. at 153.

Does committing adultery automatically disqualify the adulterer/adulteress from receiving alimony? Does it automatically obligate the adulterer/adulteress to pay alimony? No and no. Adultery, standing alone, cannot have that effect.

What is the maximum period of time for which alimony can be awarded? See Utah Code § 30-3-5(e):

(i)         Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage.

(ii)        If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony.

(iii)       At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage.

What does “the length of the marriage” mean? See Utah Code § 30-3-5(1)(c):

“Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court.

There are other aspects of alimony that Utah Code § 30-3-5 covers, so you’ll want to read the entire code section. Here is a link to Utah Code § 30-3-5

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Client Red Flags By Braxton Mounteer

In my time as a legal assistant in the family law profession, I have observed many different kinds of client behaviors, some better than others. Those behaviors that cause the warning sirens to go off in our office are not always apparent upon first meeting with a client. It can be two or three weeks of communication before a red flag behavior appears.

One of the worst red flags that I have seen is not telling the whole truth. Clients who spin a yarn that falsely paints them as victims who are down on their luck and being abused by their exes and the system. Usually, this kind of dishonest client is not only being dishonest, but gives as good has he or she got in a mutually dysfunctional relationship. There isn’t much of an argument to be had by accusing your spouse of being an abusive drunk, a pill-popper, a philanderer, etc. when you’re engaged in the same or similar bad behavior. Be honest with your lawyer. He can help you. He can’t magically make all problems disappear, but he can ensure you present the ugly truths about yourself in the most effective ways. Your lawyer can’t help you very much, if at all, however, if you’re not honest with your lawyer. Period.

Another behavior that sets off the warning bells are the clients who focus on how much money and/or assets that they can get out of their former spouse. You are entitled to an equitable distribution of the marital assets. A fair division. But when clients try to leverage the children for money lie about abuse and betrayal and debauchery, that’s not only disgusting but it can backfire.

Finally, the least damning of the red flags but the most common are the clients who ghost their lawyers. Why would you hire an attorney ostensibly to help you, then not cooperate with them? If your lawyer is calling, it is probably important. You need to take the call. You need to return the call. Read your lawyer’s emails. Respond to them. Timely. When you fall asleep at the wheel or just expect your lawyer to do everything, it isn’t your lawyer’s fault when things go awry.

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

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Knight v. Knight – 2023 UT App 86 – trusts and alimony

Knight v. Knight – 2023 UT App 86

THE UTAH COURT OF APPEALS

JARED M. KNIGHT,

Appellee,

v.

REBECCA B. KNIGHT,

Appellant.

Opinion

No. 20210080-CA

Filed August 10, 2023

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 184902185

Julie J. Nelson, Taylor Webb, and Stephen C. Clark,

Attorneys for Appellant

Bart J. Johnsen and Alan S. Mouritsen,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

MORTENSEN, Judge:

¶1        After a trial on cross-petitions, the district court entered

findings of fact and conclusions of law and a final decree divorcing Rebecca and Jared Knight. Rebecca[1] appeals several aspects of the divorce decree, including the court’s determination that she had no interest in a trust Jared’s father established before the marriage and several of the court’s calculations related to alimony. We affirm the district court’s ruling with respect to Jared’s trust, and we affirm in part and reverse in part with respect to the alimony calculations.

BACKGROUND

¶2        In October 1994, Jared’s father, L. Randy Knight, created the RKF Jared M. Knight Trust (the Trust), an irrevocable trust. Randy named Jared as the sole beneficiary of the Trust and transferred a significant interest in RKF, LLC—an Arizona limited liability company formed in 1994 by Randy—to the Trust. The trust agreement for the Trust (Trust Agreement) specified that the Trust would be governed by Arizona law. The Trust Agreement also contained a “spendthrift provision” declaring that Jared lacked the “right to assign, transfer, encumber, or hypothecate his . . . interest in the principal or income of the [T]rust in any manner.” Additionally, the Trust Agreement granted Jared a power of withdrawal over the Trust principal such that Jared could withdraw up to one-fourth of the principal at age 30 (June 2002), up to one-third of the principal at age 35 (June 2007), and all the principal at age 40 (June 2012). To exercise this power, Jared would need to make “a request in writing.”

¶3        In October 1995, Jared and Rebecca were married. During their marriage, the parties enjoyed a lavish lifestyle funded, in part, by the wealth of Jared’s family.

¶4        In March 2008, Rebecca and Jared executed a “Property Agreement” (the Property Agreement), which stated, “All property which is now owned by JARED or by REBECCA, individually, . . . is hereby declared to be, and hereby is, the community property of JARED and REBECCA.” The Property Agreement specified that “to the extent necessary, JARED and REBECCA each hereby gives, grants, conveys and assigns to the other an interest in his or her property . . . so as to transmute[2] such property into the community property of JARED and REBECCA.” The Property Agreement further declared, “All property hereafter acquired by JARED and REBECCA, or either of them, . . . shall be deemed to be, and hereby declared to be, the community property of JARED and REBECCA.” However, the Property Agreement carved out an exception: “Notwithstanding the foregoing, any property received by JARED and REBECCA by gift or inheritance after the date of this [Property] Agreement shall be the sole and separate property of the person receiving it, unless that person declares otherwise in writing.” The Property Agreement is, like the Trust, governed by Arizona law.

¶5        In 2016, the Trust was decanted[3] into a new trust. The new trust named Jared as sole initial trustee and therefore permitted Jared to distribute to himself, “upon his written request, up to the balance of the principal of his trust at any time.”

¶6        In April 2018, Jared filed for divorce. Rebecca ultimately filed an amended counterclaim alleging that the principal of the Trust was marital property and therefore subject to equitable distribution under the terms of the Property Agreement.

¶7        Jared filed a motion for partial summary judgment on this point, arguing that the Property Agreement “did not transmute assets held by the [Trust]” into marital property. Jared asserted that the Property Agreement did not apply to the Trust because, at the time he entered into the Property Agreement, he did not own the Trust principal under Arizona law. He pointed to the statute in effect in 2008—the year the parties entered into the Property Agreement—which stated that “if the trust instrument provides that a beneficiary’s interest in principal is not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal shall not be transferred.” Ariz. Rev. Stat. Ann. § 14­7702(a) (2008). The statute further specified that a court may not order the satisfaction of a money judgment against a beneficiary until “[a]fter an amount of principal becomes immediately due and payable to the beneficiary.” Id. § 14-7702(b). It explained that “[i]f an amount of principal is due and payable only at a future date, or only on the occurrence of a future event, whether the occurrence of that event is within the control of the beneficiary, the amount of the principal is not immediately due and payable to the beneficiary.” Id. Jared asserted that the Trust’s “disbursement mechanism squarely fit[] within the framework of Arizona Revised Statute Section 14-7702(B) as it was written in 2008” because the Trust’s requirement that Jared submit a written request for disbursement of the Trust principal rendered the principal “not immediately due and payable.” See id. And Jared argued that, because he never submitted a written disbursement request or withdrew any principal of the Trust, “[a]s a matter of Arizona law as it existed at the time that the Property Agreement was executed in 2008, no amount of the Trust principal is ‘now owned’ or ‘hereafter acquired’” by Jared, so the Property Agreement did not apply to the Trust.

¶8        Rebecca opposed Jared’s motion and filed her own motion for partial summary judgment. Rebecca argued that Jared’s beneficial interest in the Trust was a property interest that Jared owned at the time of the Property Agreement. She also asserted that Jared’s power of withdrawal gave him an ownership interest in the Trust principal that he was eligible to withdraw as of the date of the Property Agreement. She said, “Consistent with the common understanding of ‘property’ as comprising a set of rights (a ‘bundle of sticks’ in the law-school formulation), if among those rights a person has the right to control the disposition of an asset, that asset is his property, and he has ownership of the property.” Rebecca further avowed that “[t]he Arizona statute on which Jared relies . . . has nothing to do with the question before this [c]ourt” because it applies to “the rights of ‘creditors’ to access property held in trust for a beneficiary when the trust features a ‘spendthrift’ clause” and Rebecca was not a creditor. Accordingly, Rebecca claimed that the Trust’s spendthrift clause “did not limit Jared’s ability to transmute his property interest in the Trust or its underlying assets into community property, and he plainly did so by signing the Property Agreement.” Rebecca argued that the Restatement (Third) of Trusts instead applied and made it “clear that trust assets subject to an exercisable power of withdrawal are ‘property.’” (Citing Restatement (Third) of Trusts § 56 cmt. b. (Am. L. Inst. 2003) (“Trust property subject to a presently exercisable general power of appointment (a power by which the property may be appointed to the donee, including one in the form of a power of withdrawal), because of the power’s equivalence to ownership, is treated as property of the donee.” (emphasis added))).

¶9        The court denied Rebecca’s motion for partial summary judgment and granted Jared’s. The court reasoned that “the legal position taken in [t]he Restatement (Third) of Trusts § 56 was not the law in Arizona until 2009, when it [was] partially codified as part of the Arizona Trust Code,” and it rejected Rebecca’s argument that “the spendthrift clause specifically disengages for purposes of the exercise of a power of withdrawal [and] expressly allows a trustee to transfer withdrawn property to a beneficiary.” The court determined, instead, that Arizona Revised Statutes section 14-7702 applied because—regardless of whether Rebecca was a “creditor”—“that statute . . . define[d] when an amount is due and payable and separately define[d] the rights of creditors.”

Accordingly, the court concluded that “[n]o amount of the Trust principal is due or payable within the meaning of that statute, and it is therefore protected against . . . the disbursement sought by [Rebecca].” The court thus ruled that because Jared’s interest in the Trust principal was “not subject to voluntary or involuntary transfer,” see Ariz. Rev. Stat. Ann. § 14-7702(a) (2008), it could not be transferred through the Property Agreement.

¶10 The parties then proceeded to trial on the other issues involved in their divorce, including distribution of the marital estate and alimony. The district court entered its order, later entering its findings of fact and conclusions of law and issuing the divorce decree. As relevant to this appeal, in its alimony calculations, the court made several reductions to Rebecca’s claimed expenses.

¶11      First, the court made several modifications to the expenses Rebecca submitted related to home maintenance. The court eliminated the snow removal expense of $175 per month, stating, “The parties never paid for snow removal during the marriage[,] and this expense was not part of the marital [lifestyle].” It eliminated the monthly “[p]ool/[s]pa maintenance” expense of $373.33, reasoning that “[t]he parties did not have pool maintenance expense[s] during the marriage as the pool was maintained by the parties” and “[t]his new expense was only incurred after separation and because [Rebecca] is not cleaning the pool despite acknowledging she is capable of doing so.” And it eliminated the monthly landscaping expense of $414.66 because “[t]his was not an expense that was incurred during the marriage as the yard work was done by the parties themselves.” It continued, “[Rebecca] further acknowledged that she is capable of yard work. Also, [Jared] has not requested that he [have] third parties do his yard maintenance.”

¶12      Next, the district court modified several of Rebecca’s expenses related to health and personal care. It reduced Rebecca’s health care insurance expense from $757 per month to $411 per month, explaining,

[Rebecca] is not incurring this expense but is covered under the parties’ current policy. In addition, no written evidence was provided as to the costs for health care coverage for [Rebecca]. [Rebecca] acknowledged the $757 was for a policy with no deductibles[,] which is not the same level of policy the parties currently have in place, which has [an] $8,000 a year deductible. Further, the [c]ourt has received evidence in other cases that health care coverage for a single person can be obtained in the $400 to $500 a month range. Therefore, the [c]ourt adjusts [Rebecca’s] coverage to be consistent with [the] current known expense of health care of the parties and which [Jared] established at $411 a month.

The court also reduced Rebecca’s expense for personal grooming from $949.83 per month to $500 a month. It stated,

[Rebecca’s] evidence of getting a haircut twice a year and having her nails and eye lashes done monthly to every six (6) weeks did not establish this claimed and requested expense of $11,397.96 a year for personal expenses. [Jared] did not ask for any personal grooming as part of his expenses relating to the marital standard of living[,] and he [is] not getting the $500 [Rebecca] is being awarded.

¶13 Finally, the court made several adjustments to Rebecca’s claimed expenses related to savings. The court eliminated Rebecca’s “[s]avings [p]lan contribution” of $2,500 per month. The court explained,

[Rebecca] admitted that this amount was only an estimate on her part in that she thought the parties may have saved $30,000 a year. [Jared’s] testimony was the parties did not contribute to any savings plan for the parties in any amount on a monthly or regular basis. Rather, the parties would save money as they had it in differing amounts and when there were sufficient funds to purchase what they wanted, the parties would spen[d] the money on cars and other purchases. No savings program was done during the marriage. In addition, [Jared] has not requested a savings plan as part of his expenses, and he is entitled to the same marital standard as [Rebecca].

The court eliminated “[r]etirement deposits” of $500 per month, stating,

The evidence adduced at trial established the parties never saved $500 a month for retirement. Further, [Jared] did not ask for retirement as part of his expenses relating to the marital standard of living[,] giving further credibility to this fact. The evidence was any retirement amounts for the parties was only set aside and deposited in three (3) of the twenty-seven (27) years of marriage.

The court eliminated Rebecca’s “additional capital/investment funds” of $7,279 monthly because “[t]he testimony and evidence established there never was any such capital or investment funds like this during the marriage. Further, no testimony was provided as to how this figure was arrived at to be claimed in the first place.” The court declared that “[t]his is simply a request, which is unfounded and which the [c]ourt finds is an attempt to inflate [Rebecca’s] expenses.”

¶14      Rebecca now appeals.

ISSUES AND STANDARDS OF REVIEW

¶15 Rebecca presents three issues on appeal. First, she asserts that “the district court erred when it determined, on summary judgment, that Rebecca had no interest in [the] Trust.” “When an appellate court reviews a district court’s grant of summary judgment, the facts and all reasonable inferences drawn therefrom are viewed in the light most favorable to the nonmoving party, while the district court’s legal conclusions and ultimate grant or denial of summary judgment are reviewed for correctness.” Massey v. Griffiths, 2007 UT 10, ¶ 8, 152 P.3d 312 (cleaned up).

¶16 Second, Rebecca argues that even “if the district court’s interpretation and application of Arizona law to the Trust and the Property Agreement were correct, it nonetheless abused its discretion when it refused to divide the Trust on equitable grounds.” “District courts have considerable discretion concerning property distribution in a divorce[,] and we will uphold the decision of the district court unless a clear and prejudicial abuse of discretion is demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d 1113 (cleaned up).

¶17      Third, Rebecca contends that “the district court erred in its calculation of alimony.” “A district court’s award of alimony is reviewed for abuse of discretion.” Id. ¶ 9. “Although trial courts have broad latitude in determining whether to award alimony and in setting the amount, and we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set,” including if the court commits legal error. Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (cleaned up).

ANALYSIS

I. Rebecca’s Interest in the Trust

¶18      Rebecca argues that the district court erred in ruling that she was not entitled to an equitable share of the Trust. Rebecca first asserts that the court erred in applying the 2008 Arizona Trust Code (the 2008 Code) because the 2009 Arizona Trust Code (the 2009 Code) applied retroactively and indicated that Jared’s power of withdrawal gave him an ownership interest subject to transmutation under the Property Agreement. She also argues, alternatively, that even if the 2008 Code applies, Jared’s interest in the Trust was marital property. Jared counters that the 2008 Code applies, that his “interest in the Trust principal was bound by a valid spendthrift provision” at the time of the Property Agreement, and that it was therefore not transferrable through the Property Agreement.

¶19 We agree with Jared and uphold the district court’s decision on this issue. First, we conclude that the 2009 Code does not retroactively modify the nature of Jared’s interest in the Trust at the time of the Property Agreement.[4] Even if application of the 2009 Code would have the effect Rebecca claims, we cannot apply that version of the code.

¶20      Arizona law indicates that “beginning on January 1, 2009[,] . . . [the 2009 Code] applies to all trusts created before, on or after January 1, 2009.” Act of Dec. 31, 2008, ch. 247 § 18(A)(1), 2008 Ariz. Sess. Laws 1179, 1179 (2nd Reg. Sess.). The parties entered the Property Agreement in March 2008. Because this date predates January 1, 2009, the 2009 Code had not taken effect at the time the parties signed the Property Agreement and therefore had no application to the Trust. Indeed, the Arizona Legislature did not leave this point ambiguous but rather included a specific provision stating that “[a]n act done before January 1, 2009[,] is not affected by this act.” Id. Arizona caselaw has interpreted this exception to mean that the preexisting law governed until January 1, 2009. See Favour v. Favour, No. 1 CA-CV 13-0196, 2014 WL 546361, ¶ 30 (Ariz. Ct. App. Feb. 11, 2014) (stating that a previous statute “governs actions taken by a trustee prior to implementation of the Arizona Trust Code . . . on January 1, 2009,” and that the earlier statute “recognized the trustee’s investment and management authority,” so “as a matter of law, [the trustee] had the authority to invest, trade, diversify, and manage trust assets prior to January 1, 2009” (cleaned up)); In re Esther Caplan Trust, 265 P.3d 364, 366 (Ariz. Ct. App. 2011) (“The past principal distributions are not governed by [the 2009 Code]. That statute became effective after the challenged distributions were made. The predecessor statute . . . merely required a trustee to keep the beneficiaries of the trust reasonably informed of the trust and its administration. The record establishes that [the appellee] complied with these relatively minimal requirements.” (cleaned up)).

¶21      Accordingly, at the time the parties signed the Property Agreement, the 2008 Code was in effect. If the parties had signed the Property Agreement on, say, January 2, 2009, the 2009 Code could retroactively apply to the Trust—though it was created in 1994—to govern its terms. But because the Property Agreement was signed before the 2009 Code went into effect, the 2009 Code’s retroactivity provision also had no effect. Therefore, Jared’s interest in the Trust for the sake of the Property Agreement was whatever existed under the 2008 Code, and any restrictions of the Trust as of March 2008 had full effect and were not modified by the 2009 Code. Put another way, Jared could not give an interest in property in 2008 that he did not have the right to transfer.

¶22 Under the 2008 Code, the Trust’s spendthrift provision prevented Jared from transmuting his interest in the Trust into marital property.[5] The 2008 Code specified that “if [a] trust instrument provides that a beneficiary’s interest in principal is not subject to voluntary or involuntary transfer, the beneficiary’s interest in principal shall not be transferred.” Ariz. Rev. Stat. Ann. § 14-7702(a) (2008). The Trust was subject to a spendthrift provision, declaring that Jared lacked the “right to assign, transfer, encumber, or hypothecate his . . . interest in the principal or income of the [T]rust in any manner.” Consequently, Jared’s interest in the Trust was “not subject to voluntary or involuntary transfer,” so his interest was not eligible for transfer. See id.see also In re Indenture of Trust Dated Jan. 13, 1964, 326 P.3d 307, 312 (Ariz. Ct. App. 2014) (“A valid spendthrift provision makes it impossible for a beneficiary to make a legally binding transfer.” (emphasis added) (cleaned up)).

¶23      In an effort to avoid the restrictive effect of the Trust’s spendthrift provision, Rebecca argues that “[t]ransmuting property is distinct from transferring property” and therefore “Jared did not transfer any interest” when he allegedly transmuted his interest in the Trust through the Property Agreement. Citing State ex rel. Industrial Commission of Arizona v. Wright, 43 P.3d 203 (Ariz. Ct. App. 2002), Jared responds that Arizona caselaw rejects this argument:

[In Wright], the court explained that the term “transfer” “includes any transaction in which a property interest was relinquished.” Because transmuting a property interest from separate property to community property surrenders the transferor’s entitlement to half of his or her separate property, the court reasoned, such a transmutation qualifies as a “transfer” of that property.

(Citations omitted.) Rebecca responds that the holding of Wright applies “only in the specific context of the Uniform Fraudulent Transfers Act.”

¶24 In Wright, the Arizona Court of Appeals considered a premarital agreement that was fraudulently modified after a husband fell subject to a workers’ compensation claim. Id. at 204. The modification stated that separate earnings would be community property, thus attempting to evade a judgment against the husband’s earnings. Id. The court held that the transmutation of the husband’s earnings constituted a transfer under the Uniform Fraudulent Transfers Act:

Before the modification, [the husband] held a sole interest in the entirety of his future earnings. The effect of the modification was to transfer that entire interest to the community. [The wife] would have a right to dispose of those earnings now dedicated to the community that she did not have when they were [the husband’s] separate property. Additionally, upon dissolution of marriage, [the husband] would have surrendered all entitlement to half of those earnings. Hence, [the husband] has transferred an asset within the meaning of [the Uniform Fraudulent Transfers Act].

Id. at 205. While the Wright court did conclude that the parties’ actions satisfied the broad statutory definition of a transfer under the Uniform Fraudulent Transfers Act, see id., and while Rebecca is correct that the Uniform Fraudulent Transfers Act is not at issue here, the court’s analysis is still useful. If we accept Rebecca’s argument that the Property Agreement transmuted Jared’s interest in the Trust, then—like in Wright—before the Property Agreement, Jared’s interest in the Trust was solely his and the Property Agreement served to “transfer that entire interest to the community.” See id. And upon divorce, Jared “would have surrendered all entitlement to half of” his interest in the Trust. See id. Accordingly, while we are not applying the definition of “transfer” from the Uniform Fraudulent Transfers Act, we conclude that a transmutation here would have been a transfer. In terms of the bundle of sticks formulation that Rebecca referenced in her motion for partial summary judgment, Jared would be giving Rebecca access to and an interest in whatever sticks he was holding at the time he signed the Property Agreement—sticks that she did not previously hold.[6]

¶25      Our conclusion that Jared’s purported transmutation of the Trust into marital property would have constituted a transfer is supported by the language of the Property Agreement itself. The Property Agreement indicated that “to the extent necessary, JARED and REBECCA each hereby gives, grants, conveys and assigns to the other an interest in his or her property . . . so as to transmute such property into the community property of JARED and REBECCA.” (Emphasis added.) This language belies Rebecca’s argument that the transmutation only changed the nature of—but did not affect a transfer of—Jared’s interest. And this language also runs up against the language in the Trust’s spendthrift provision forbidding Jared from “assign[ing], transfer[ing], encumber[ing], or hypothecat[ing] his . . . interest in the principal or income of the [T]rust in any manner.” Accordingly, we agree with the district court that the Property Agreement had no effect on the Trust and that, therefore, Rebecca does not have a legally cognizable interest in the Trust.

II. Equitable Grounds for Dividing the Trust

¶26 Rebecca contends, alternatively, that “[r]egardless of whether the Property Agreement granted Rebecca a legally cognizable interest in the Trust itself, the district court was required to consider the Trust as part of the marital property for the sake of equity.” She asserts that “[d]istrict courts must equitably divide the marital estate” and quotes Dahl v. Dahl, 2015 UT 79, 459 P.3d 276, for the propositions that “Utah law presumes that property acquired during a marriage is marital property subject to equitable distribution” and “[t]o the extent that the Trust corpus contains marital property, Utah has a strong interest in ensuring that such property is equitably divided in the parties’ divorce action.” Id. ¶ 26. Rebecca points us to Endrody v. Endrody, 914 P.2d 1166 (Utah Ct. App. 1996), in which a husband’s parents had established a trust after the parties were married and had named the wife as one of the beneficiaries. Id. at 1167–68. This court affirmed a district court’s ruling that the trust assets were not available for distribution as marital assets but that the husband’s shares in the trust were marital property, an equitable share of which should be placed in a constructive trust for the wife’s benefit. Id. at 1170. Rebecca concludes, “In short, Jared’s interest in the Trust was marital property. And even if the Trust assets were not available for distribution, the court was required to consider the Trust as part of the marital property for equitable purposes.”

¶27      Rebecca’s argument misses the mark. We have concluded, as did the district court, that Jared’s interest in the Trust was not marital property or part of the marital estate subject to distribution. This is a distinct conclusion from one stating that trust funds are marital property but the trust principal is not available for distribution. Therefore, caselaw addressing equitable distribution of trust funds that are marital property is inapposite. And Rebecca provides no support for the position that she should be awarded an equitable portion of the value of the Trust’s principal despite a holding that she is not entitled to any portion of Jared’s interest in the Trust.[7] Accordingly, we uphold the district court’s decision that Rebecca is not entitled to any portion of or equivalent sum for Jared’s interest in the Trust.

III. Alimony

¶28      Rebecca next contends that the court erred in its alimony calculations when it made several deductions to Rebecca’s claimed expenses. Rebecca insists that she “does not raise a factual challenge” but instead “challenges the district court’s method of reduction and justification for doing so.” She asserts that the district court “misconstrued Utah law” when it adjusted her expenses.

¶29 Under Utah law, courts must consider in alimony determinations the factors listed in Utah Code section 30-3-5, including “(i) the financial condition and needs of the recipient spouse; (ii) 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; [and] (iii) the ability of the payor spouse to provide support.” Utah Code § 30-3-5(10)(a); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); English v. English, 565 P.2d 409, 411–12 (Utah 1977). “An alimony award should also advance, as much as possible, the primary purposes of alimony.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). Alimony is intended “(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.” Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117 (cleaned up).

¶30      We have previously explained,

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.

Rule, 2017 UT App 137, ¶ 14 (cleaned up); see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the marriage.”). And “in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources).” Mintz v. Mintz, 2023 UT App 17, ¶ 24, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023).

A.        Home Maintenance

¶31      Rebecca alleges that the district court improperly reduced her claimed expenses related to home maintenance, including expenses for snow removal, pool and spa maintenance, and landscaping. She argues that Jared took care of these tasks during the marriage and she should now be compensated for the cost of hiring other individuals to accomplish these tasks. In her words, “Rebecca’s marital standard of living was that someone else did the pool maintenance, snow removal, and landscaping. Since that person has moved out, she is left without the standard of living to which she was accustomed.”

¶32 Rebecca’s argument on this point is fatally flawed. A court’s inquiry in evaluating historical expenses to determine alimony involves the marital standard of living—not a separate standard of living for each person within the marriage. See Davis, 749 P.2d at 649 (describing “the standard of living enjoyed during marriage” (cleaned up)); Rule, 2017 UT App 137, ¶ 14 (considering “the parties’ standard of living during the marriage” (cleaned up)); Jensen, 2008 UT App 392, ¶ 9 (discussing the “standard of living that existed during the marriage” as one but the “the standards of living of each party” after divorce as two (cleaned up)). The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard. We can only imagine the chaos that would ensue if divorcing partners could expense every task their former spouses previously performed.[8] Instead, we reemphasize that “in terms of alimony, the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions (i.e., the historical allocation of their resources).” Mintz, 2023 UT App 17, ¶ 24. Rebecca admits that the couple did not historically allocate funds to these expenses while the parties were married, so they cannot be considered part of the marital standard of living. And the court found as much, stating, “[t]he parties never paid for snow removal during the marriage[,] and this expense was not part of the marital [lifestyle]”; “[t]he parties did not have pool maintenance expense[s] during the marriage as the pool was maintained by the parties”; and landscaping “was not an expense that was incurred during the marriage as the yard work was done by the parties themselves.” Therefore, the court was correct in reducing Rebecca’s claims for these categories when calculating her expenses for the sake of alimony.[9]

¶33 However, Rebecca did provide evidence that the parties had historically paid some amount for bark replacement and lawn aeration. In a financial declaration, she listed a monthly expense of $126.66 for “[b]ark for the year,” and she indicated that “[t]his [was] based on an actual historical expense of $3,040.00 every 2 years.” She also listed a monthly expense of $5 for aerating and stated that “[t]his [was] based on an actual historical expense of $30 paid twice per year.” Additionally, she testified that the parties had historically replaced bark and that doing so was “quite costly.”[10] Jared, in a memorandum submitted to the court, admitted that bark was an expense that the parties had previously paid and did not contest the aerating expense. Therefore, the costs associated with bark replacement and lawn aeration were part of the marital standard of living such that they were not properly excluded from consideration in the court’s alimony calculations. Accordingly, because the facts are otherwise undisputed on this issue, we reverse on this point and instruct the court to enter expenses for Rebecca of $5 per month for lawn aeration and $126.66 per month for bark replacement.

B.        Health and Personal Care

1.         Health Insurance

¶34      Rebecca asserts that the district court abused its discretion in reducing her claimed expense for health insurance. At trial, she informed the court that she was still on Jared’s family’s health insurance plan but explained her claimed cost of $757 monthly: “This was a quote that I sought out. . . . It does not have any deductible. . . . [H]istorically our deductible [was] put on an HSA card that was covered by the Knight Group.” Both parties agreed that the historical deductible, which had been paid by the Knight Group, was around $8,000.

¶35 The court reduced Rebecca’s health insurance expense to $411 per month, the number Jared gave as the historical amount the parties paid for health care services through an HSA card. The court explained, “[N]o written evidence was provided as to the costs for health care coverage for [Rebecca]. [Rebecca] acknowledged the $757 was for a policy with no deductibles[,] which is not the same level of policy the parties currently have in place, which has [an] $8,000 a year deductible.” The court indicated that its adjustment was “consistent with current known expense[s] of health care of the parties and which [Jared] established at $411 a month.”

¶36 This conclusion was in keeping with the court’s determination that monetary support from the Knight family qualified as gifts and could not be considered in determining the marital standard of living or the parties’ expenses. It noted, “[I]n this case . . . a large portion of these things the parties were enjoying was the result of the generosity and the benefits of others. When there’s . . . no guarantee or no requirement to have those additional funds come in . . . to have this lifestyle, you know, they’re not going to be able to have it.” The court again said, “You can’t count gifts . . . that were given at the discretion of other individuals to say you’re entitled to continue to receive those gifts and have those funds coming in to you to maintain a standard of living that you may have [had] when you received those gifts . . . .”

¶37 The court’s stance on this issue is correct: the gifts from Jared’s family, despite being a regular feature of the marriage, may not be properly considered in calculating Rebecca’s needs or Jared’s ability to pay alimony. See Utah Code § 30-3-5(10)(a). The alimony factors refer only to the finances of the spouses, not those of outside parties. Id.see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985). Additionally, we have enunciated previously that past gifts are not to be considered in the alimony calculus: “[T]he court could not base its prospective order on past gifts that have no assurance of being continued because [a donor] has no legal obligation to continue providing the monetary support that she has in the past.” Issertell v. Issertell, 2020 UT App 62, ¶ 26, 463 P.3d 698.

¶38      Accordingly, the court did not abuse its discretion when it determined that Rebecca did not provide qualifying evidence of her future health insurance expenses because she submitted only a quote for a plan without a deductible. The parties both testified that they had a deductible during the marriage, and Rebecca is not entitled to a health insurance plan better than the one the parties had during the marriage. The fact that the parties’ deductible was historically paid by the Knight Group does not impact our analysis because those payments were “past gifts that have no assurance of being continued because [the Knight Group] has no legal obligation to continue providing the monetary support that [it] has in the past.” See id. And without evidence from Rebecca on which it could rely, the court did not abuse its discretion in accepting the amount Jared put forth as the parties’ historical health insurance cost.[11] See Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (“Once the court determined that there was no evidence that was both credible and relevant regarding [the recipient spouse’s] reasonable housing needs, it was appropriate for the court to impute a reasonable amount based on other evidence provided by the parties. . . . We therefore see no impropriety in the trial court’s decision to impute housing needs to [the recipient spouse] in the same amount as [the payor spouse] had claimed was reasonable . . . .”). We affirm on this point.

2.         Personal Grooming

¶39      Rebecca also asserts that the court abused its discretion in reducing Rebecca’s claimed expense for “personal grooming.” The court stated that it was “reduc[ing] personal grooming by $449.83, from $949.83 to $500 a month,” because Rebecca’s “evidence of getting a haircut twice a year and having her nails and eye lashes done monthly to every six (6) weeks did not establish this claimed and requested expense of $11,397.96 a year for personal expenses.” The court also stated that Jared “did not ask for any personal grooming as part of his expenses relating to the marital standard of living[,] and he was not getting the $500 [Rebecca was] being awarded.”

¶40 Rebecca takes issue with the court’s findings and reasoning, asserting,

[T]his was not the evidence. She testified that she gets her eyelashes and nails done every two weeks, not “monthly to every six (6) weeks.” She testified that in addition to getting her hair cut, she also gets a perm. She testified that she gets a full body wax. She also testified that she has costs for “toenails.” She also testified that she has “maintenance” costs. She stated that to reach this number she “went through [her] credit card statements and added up for a year’s worth of” these expenses. She testified that “obviously this is historically . . . what I spent.”

Opposing counsel did not dispute Rebecca’s expenses, but simply opined that he thought “the maximum would be . . . $500 a month. $6000 a year for personal grooming is quite a nice budget.” But what opposing counsel thinks qualifies as “quite a nice budget” is not the test in Utah. Instead, the test is the marital standard of living, and Rebecca’s testimony—unchallenged by contrary evidence— was that she spent $949.83 per month.

Second, the district court reduced Rebecca’s personal grooming expenses because Jared “did not ask for any personal grooming as part of his expenses relating to the marital standard of living and he was not getting the $500 [Rebecca] is being awarded.” That is irrelevant. If Jared spends nothing on personal grooming, or if he has no monthly expenses because the Knight family pays for them all, that does not mean that Rebecca’s estimated expenses are inaccurate.

¶41      We agree with Rebecca on all fronts. The court would have acted within its discretion if it had found Rebecca’s evidence unreliable or had determined that Rebecca’s claimed expenses were unreasonable in light of the couple’s marital standard of living. See Woolums v. Woolums, 2013 UT App 232, ¶ 10, 312 P.3d 939 (“The district court’s evaluation of and reliance on [one spouse’s] testimony, along with its own determinations of the reasonableness of the claimed expenses, fell squarely within its broad discretion to determine an appropriate alimony award.”). But that is not what it did. It disregarded Rebecca’s evidence of historical spending and substituted a figure provided by Jared’s counsel with no evidentiary basis. Jared’s counsel’s thoughts on what makes “quite a nice budget” are irrelevant. The court’s inquiry should have been rooted in Rebecca and Jared’s marital standard of living, as indicated by their historical spending. See Mintz v. Mintz, 2023 UT App 17, ¶ 24, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023).

¶42      A court’s inquiry into the marital standard of living must evaluate the specific circumstances of that couple, and expenses that are unreasonable in light of one couple’s marital standard of living may be reasonable in light of another couple’s marital standard of living. “Indeed, we have explained that 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.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). And “the goal” of the inquiry is “an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id.see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the marriage.”). Rebecca testified that the marital standard of living included significant spending on her personal grooming. The court acted improperly when it discarded this evidence and substituted another amount without properly concluding that Rebecca’s evidence was inadequate or her expenses were unreasonable in light of the marital standard of living.

¶43      It was also improper for the court to base its determination, in part, on Jared’s lack of submission for this budget line item. There is no need for courts to limit one party’s expenses to those the other party also claims. See Utah Code § 30-3-5(10)(a) (including as a factor in determining alimony “the financial condition and needs of the recipient spouse”). In fact, doing so increases the risk of gamesmanship between the parties. There is already a risk that divorcing spouses may inflate their claimed expenses in an effort to sway the alimony calculation in their favor: payor spouses might attempt to minimize their ability to provide support by claiming high expenses, while recipient spouses might inflate their expenses to claim that their needs are great. See id. But limiting a recipient spouse’s potential expenses to only those categories claimed by the payor spouse dangerously alters this already-thorny calculation. In situations where a payor spouse’s ability to pay is unlikely to be an issue, the payor spouse would face a significant incentive to omit many expenses and thereby drastically reduce the receiving spouse’s needs. But the danger is not just in these situations. In any case, a payor spouse would be incentivized to identify categories for which the recipient spouse would likely have higher expenses and omit those. In other words, payor spouses could significantly undercut alimony awards by strategically omitting expenses. Accordingly, we caution courts not to apply such faulty reasoning when calculating alimony. Instead, courts should base their findings on expenses that are reasonable in light of the couple’s unique marital standard of living. See Mintz, 2023 UT App 17, ¶ 24.

¶44      On this front, we clarify that a couple’s marital standard of living may include disparate spending by the parties on various categories during the marriage. Throughout the marriage, one spouse may spend more—even significantly more—than the other on personal grooming, entertainment, travel, or any number of other expense categories. A partner may embrace the age-old adage’s modernized mantra of “happy spouse, happy house,” may derive independent pleasure from a spouse’s purchases, or may observe a spouse’s spending habits—whether for monthly follicle support treatments or Jazz tickets only one spouse actually uses—through gritted teeth. But for the sake of calculating alimony, we assume that the parties agreed on their household expenditures such that whatever was historically spent by the parties during the marriage constitutes the couple’s marital standard of living, even if the spending was lopsided—or, indeed, one-sided—within a given expense category. See Davis, 749 P.2d at 649; Rule, 2017 UT App 137, ¶ 14. Consequently, whether Jared truly spent nothing on personal grooming historically or he simply elected to omit his expenses in that category, the court erred in limiting its acceptance of Rebecca’s personal grooming expenses based on Jared’s lack of submission.

¶45      The court abused its discretion when it applied the wrong legal standard to Rebecca’s claimed expenses for personal grooming. Because the court did not find Rebecca’s evidence unreliable or determine that Rebecca’s claimed expenses were unreasonable in light of the couple’s marital standard of living, we reverse its decision on this point and instruct it to modify its findings to include the $949.83 per month consistent with the parties’ marital standard of living.

C.        Savings and Other Funds

1.         Savings Plan

¶46      Rebecca asserts that the court wrongfully entirely rejected her expense for a “[s]avings [p]lan” of $2,500 per month. First, she points to the court’s statement that “[Jared] has not requested a savings plan as part of his expenses, and he is entitled to the same marital standard as [Rebecca].” As we have discussed, such a consideration has no place in the alimony analysis under Utah law. Additionally, the court summarized the evidence related to a savings plan:

[Rebecca] admitted that this amount was only an estimate on her part in that she thought the parties may have saved $30,000 a year. [Jared’s] testimony was the parties did not contribute to any savings plan for the parties in any amount on a monthly or regular basis. Rather, the parties would save money as they had it in differing amounts and when there were sufficient funds to purchase what they wanted, the parties would spen[d] the money on cars and other purchases.

From this, the court concluded that “[n]o savings program was done during the marriage.” But in so concluding, the court misapplied Utah law on this subject.

¶47      In Mintz v. Mintz, 2023 UT App 17, 525 P.3d 534, cert. denied, 523 P.3d 730 (Utah 2023), we considered a similar question of whether “the district court erred in excluding from the alimony award an amount reflective of historical investment” where a couple had a habit of investing money “essentially as savings.” Id. ¶¶ 2, 16. There, the parties’ testimonies established that “[b]efore 2014, they made deposits into investment accounts ‘when money was left over after normal marital spending,’ and after 2014, they made direct deposits into investment accounts as part of [the husband’s] employment.” Id. ¶ 2. We reiterated that, in situations like these, “[t]he critical question is whether funds for post-divorce savings, investment, and retirement accounts are necessary because contributing to such accounts was standard practice during the marriage and helped to form the couple’s marital standard of living.” Id. ¶ 17 (quoting Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16, 80 P.3d 153). We noted that “when the Bakanowski court provided the test for appropriate consideration of savings, investment, and retirement accounts in alimony calculations, it cited” another case “in which the court reasoned that because the parties had made regular savings deposits, including savings in the alimony award could help maintain the recipient spouse’s marital standard of living.” Id. ¶ 18 (cleaned up). Then we clarified that “an event must certainly be recurring but need not be uniformly systematic to be considered ‘regular.’ Indeed, something can be done ‘regularly’ if done whenever the opportunity arises, though the actual time sequence may be sporadic.” Id. ¶ 19 (cleaned up). So, we explained,

Even if savings deposits and investments do not occur on an exact timetable, such marital expenditures can be considered a standard practice in those infrequent and unusual circumstances where a party can produce sufficiently persuasive evidence that savings deposits and investments were a recurring marital action whenever the opportunity arose, though the actual time sequence may be sporadic.

Id. ¶ 20 (cleaned up). And we concluded that the parties’ testimonies that they made substantial deposits into investment accounts “at least annually” “established that the parties followed a regular pattern, i.e., a standard practice, of investing a portion of their annual income.” Id. ¶ 21 (cleaned up).

¶48 We then considered the question of whether the parties’ standard practice of investing contributed to their marital standard of living, because “to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the ‘marital standard of living.’” Id. ¶ 22 (quoting Bukunowski, 2003 UT App 357, ¶ 16). We concluded that the parties’ standard practice of investing did contribute to their marital standard of living, so we remanded “the case to the district court to recalculate alimony based on the amount that the couple’s historical investment contributed to the marital standard of living.” Id. ¶ 28. The same is true for savings: a court must determine whether a couple’s standard practice of saving contributed to their marital standard of living to incorporate savings into an alimony award. See id.

¶49 Here, such a conclusion is less apparent from the district court’s findings than was true in Mintz. The court’s description of Rebecca’s testimony of annual savings and of Jared’s testimony that the parties would save to fund large purchases certainly suggests that savings may have been a standard practice during the marriage that contributed to the marital standard of living. See id. ¶¶ 20–22; Bukunowski, 2003 UT App 357, ¶ 16; Kemp v. Kemp, 2001 UT App 157U, paras. 3–4. But the court’s findings regarding the regularity of the couple’s savings habits are insufficient for us to hold that this standard is clearly met. Still, the court’s conclusion that “[n]o savings program was done during the marriage” does not clearly follow from its other findings, given our caselaw on this topic. The court’s focus strictly on monthly savings habits is myopic and at odds with precedent, and the court provides no explanation for its interpretation of Jared’s testimony that the parties did not save on a “regular basis.” Therefore, we conclude that the court exceeded its discretion on this matter insofar as it applied the incorrect legal standard. See Bjarnson v. Bjarnson, 2020 UT App 141, ¶ 5, 476 P.3d 145 (“We will reverse [an alimony award] if the court has not exercised its discretion within the bounds and under the standards we have set . . . .” (cleaned up)). We remand this matter for the court to make additional findings as to the regularity of the parties’ savings deposits. On remand, “the court should, as a legal matter, ensure it employs the correct legal definitions of standard practice and marital standard of living, apply the facts of [this] case to those definitions, and then determine whether the facts as found meet the criteria for a savings-based alimony award.” Mintz, 2023 UT App 17, ¶ 17.

2.         Retirement

¶50      Rebecca also asserts that the court erred in entirely rejecting her submitted expense for “[r]etirement deposits” of $500 per month. The court explained that “[t]he evidence adduced at trial established the parties never saved $500 a month for retirement. . . . The evidence was any retirement amounts for the parties was only set aside and deposited in three (3) of the twenty-seven (27) years of marriage.” The court again improperly discussed the point that “[Jared] did not ask for retirement as part of his expenses relating to the marital standard of living,” but rather than relying on this point to deny Rebecca’s claim for a retirement savings provision in the alimony award, the court stated that this point gave “further credibility to th[e] fact” that the parties did not regularly save for retirement. More importantly, and unlike for the savings category, the court’s conclusion that there was no standard practice of saving for retirement flows from its findings on the irregularity of the parties saving for retirement while married.

¶51 Furthermore, Rebecca does not argue on appeal that the court applied the wrong legal standard here. She explains that Jared did not submit a retirement expense because he “is worth literally millions of dollars and Rebecca, when she was married, also anticipated having millions of dollars available for retirement.” She argues that “[t]o even come close to approximating the marital standard of living, Rebecca must start to save for retirement.” But this is not in line with our caselaw. Again, we look to the parties’ “historical allocation of their resources” to determine their marital standard of living, id. ¶ 24, and Rebecca does not argue that the parties historically allocated their resources by saving regularly for retirement. Therefore, the court did not abuse its discretion in determining that saving for retirement was not a feature of the marital standard of living and, accordingly, removing that claimed expense when calculating alimony. We affirm on this point.

3.         Additional Capital/Investment Funds

¶52 Finally, Rebecca contends that the court was wrong to reject her expense for “additional capital/investment funds” of $7,279 monthly. The court did so because “[t]he testimony and evidence established there never was any such capital or investment funds like this during the marriage. Further, no testimony was provided as to how this figure was arrived at to be claimed in the first place.” The court declared that “[t]his is simply a request, which is unfounded and which the [c]ourt finds is an attempt to inflate [Rebecca’s] expenses.” Rebecca argues on appeal that this “is incorrect” and that her “[f]inancial [d]eclaration provide[d] a detailed explanation of how the figure was computed: ‘This is an amount based on funds the parties historically had available from [Jared’s] family wealth for discretionary investments . . . .’” This argument does not prevail. As we have explained, past gifts are excluded from the alimony calculus. See Issertell v. Issertell, 2020 UT App 62, ¶ 26, 463 P.3d 698. The funds that were historically available for investment were gifts, and as such, they are not properly considered as a standard practice contributing to the marital standard of living. See id.Mintz, 2023 UT App 17, ¶¶ 20–22. Therefore, the court was acting within its discretion as to this item, and we affirm its decision in this respect.

CONCLUSION

¶53      The district court did not err in determining that Rebecca had no interest in the Trust, and it did not abuse its discretion in deciding against dividing the Trust on equitable grounds. We affirm in this respect.

¶54 As to alimony, the court exceeded its discretion when it applied the wrong legal standard when calculating several of Rebecca’s expenses. Accordingly, we reverse the court’s decision with respect to Rebecca’s personal grooming expenses and the expenses associated with lawn aeration and bark replacement. We also remand the matter for further factual findings as to the regularity of the parties’ savings deposits and a determination of whether, applying the law correctly, the parties’ savings habits constituted a standard practice contributing to the marital standard of living. We affirm the remainder of the court’s alimony determinations.

 

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What Alimony Is and What Alimony Is Not in Utah – Part 4 of 4

It’s tempting to try to rationalize and justify an unfair alimony decision, either by paying too little or obtaining too much alimony. And it’s hard to say just exactly what is and is not affair alimony award. If you were permitted to try the same alimony case involving the same parties and the same facts in front of several different judges, you could and likely would get several differing—even potentially wildly differing—alimony awards. In my professional opinion, the best and fairest way to make the strongest and most persuasive alimony arguments is by basing them upon the Golden Rule (i.e., do as you would be done by). Conduct A scrupulously honest assessment of both your and your spouse’s incomes and expenses. If out of your income you can cover your expenses of the lifestyle to which you became accustomed during the marriage and have a surplus each month, and if your spouse cannot cover his/her expenses of the lifestyle to which he/she became accustomed during the marriage, then it is only fair that you pay some alimony.

Even when you are confronted with the situation where two cannot live more cheaply apart than they could under the same roof together, alimony might still be awarded under what is known in Utah as the “equalization of income” or “equalization of poverty” analysis:

Equalization of income, which “is perhaps better described as ‘equalization of poverty,’ ” is a trial court’s remedy for “those situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.” Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173. When this situation arises, the trial court must determine how to equitably allocate the burden of insufficient income that occurs when the resources that were sufficient to cover the expenses of a couple must now be stretched to accommodate the needs of two individuals living separately. Such a situation arose in this case where the parties had a combined $6,722 in monthly expenses that the trial court found reasonable and only $2,913 in net monthly income. The court attempted to equalize the parties’ poverty by setting alimony at a rate whereby they would each be “left with a monthly shortfall of approximately $1928” between their incomes and their expenses. This is not an unreasonable approach at a theoretical level. See generally Hansen v. Hansen, 2014 UT App 96, ¶ 4, 325 P.3d 864 (noting that the trial court equalized the parties’ standards of living by awarding alimony in a way that resulted in “each party having an equal monthly shortfall”); Kidd v. Kidd, 2014 UT App 26, ¶ 3, 321 P.3d 200 (noting that by “adding the parties’ monthly income” and “dividing that income in half,” then awarding the wife the difference between one-half the parties’ total income and her individual income, the trial court “intended to ensure that the shortfall in their ability to maintain the marital standard of living was equitably shared”).

(Keyes v. Keyes, 351 P.3d 907, ¶ 39 (Utah Ct.App. 2015), 2015 UT App 114)

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What Alimony Is and What Alimony Is Not in Utah – Part 3 of 4

Are there ways to game alimony calculations? Can you get more than you deserve? Or be ordered to pay less than you fairly should? Yes, yes, and yes. Is that moral or legal? No and no.

Still, understanding how people can take advantage of the alimony analysis and calculation is helpful to preventing it from happening and from victimizing payees and payors alike.

Multiple volumes could be written about the various ways in which the amount of alimony paid or received constitutes ill-gotten gains, but briefly, here are some generally common schemes, and here are some ways to combat them:

  • Misrepresenting one’s income and hiding one’s income by being self-employed.
  • Long term planning for divorce by systematically reducing one’s income months or years in advance of filing for divorce, to create an artificially low history of income.

o   One way of doing this, though not the only way, would be to quit one’s job or reduce one’s work hours by claiming to become a full-time student seeking an advanced degree.

o   Another way: colluding with an employer to defer bonuses and/or raises until after the decree of divorce is entered.

  • Increasing one’s spending habits and indebtedness in the months and years leading up to divorce to create an artificial history of a falsely expensive lifestyle
  • Being underemployed or unemployed and claiming that it constitutes the lifestyle to which you became accustomed during the marriage. For example:

o   being able to work full-time, but not working full-time or not working only part time when you could easily work full time without full time employment having any serious adverse effects on the marriage or family or children (if the couple has children).

o   being a stay-at-home parent who claims to devote his or her time to full time child rearing and housekeeping, when you’re simply lazy

  • Feigning ill health and or disabilities to up here unable to support yourself and or in need of the financial support of your soon-to-be ex-spouse.
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What Alimony Is and What Alimony Is Not in Utah – Part 1 of 4

Today’s questions is what alimony is and what alimony is not in Utah. Before we find out what Utah alimony is and is not, we should first start with the definition of alimony. For those of you that don’t know this, lawyers have dictionaries unique to themselves. The preeminent legal dictionary is known as Black’s Law Dictionary. It’s a good place to start if you have a question about a legal term.

Black’s Law Dictionary defines alimony generally as follows: A court-ordered allowance that one spouse pays to the other spouse for maintenance and support while they are separated, while they are involved in a matrimonial lawsuit, or after they are divorced; esp., money that a court orders someone to pay regularly to his or her former spouse after the marriage has ended. But there are more particular definitions of alimony as well.

– lump-sum alimony is alimony in the form of a single and definite sum not subject to modification. — Also termed alimony in gross.

– permanent alimony is alimony payable in usually weekly or monthly installments either indefinitely or until a time specified by court order. • This kind of alimony may usually be modified for changed circumstances of either party. It terminates upon the death of either spouse and usually upon the remarriage of the obligee. — Also termed final alimony; periodic alimony.

– rehabilitative alimony is alimony found necessary to assist a divorced person in acquiring the education or training required to find employment outside the home or to reenter the labor force. As such, it has time limitations, typically just a few years. — Also termed short-term alimony; transitional alimony.

– reimbursement alimony is alimony designed to repay a spouse who during the marriage made financial contributions that directly enhanced the future earning capacity of the other spouse. • An example is alimony for a wife who worked full-time supporting herself and her husband with separate-property earnings while he earned a medical degree.

(Black’s Law Dictionary (11th ed. 2019))

There is also a kind of alimony known as “reimbursement alimony” designed to repay a spouse who during the marriage made financial contributions that directly enhanced the future earning capacity of the other spouse. An example is alimony for a spouse who worked full-time supporting both spouses with separate-property earnings while the other spouse earned a medical or other professional degree.

(Id.)

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If You Are Separated and She Wants Her Money for Child Support and Alimony Early Payment for the Child Support, Can She Get It by Taking You to Court?

It appears that your question is: can child support be awarded to a parent even if a divorce or child support action has not yet been filed? If that is your question, then the answer is “yes” in many jurisdictions. You’ll want to verify whether that is the case in your particular jurisdiction.

In Utah, where I practice divorce and family law, one can obtain child support without a court order by obtaining an administrative order awarding child support instead. Here is how that process works (click this link): https://ors.utah.gov/child-support/establish-child-support-orders/

Can one obtain spousal support or alimony without a court order? I can’t say as to all jurisdictions, but in Utah the answer is: no. The only order that entitles one to spousal support or alimony is a court order. Spousal support can be ordered on a temporary basis during the pendency of a divorce action before the court issues its decree of divorce.

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https://www.quora.com/If-you-are-separated-and-she-wants-her-money-for-child-support-and-alimony-early-payment-for-the-child-support-can-she-get-it-by-taking-you-to-court-Thats-what-she-did-before-we-was-divorced

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If the Spouse Receiving Support Moves Out of State, Which State’s Laws Determine if They’re Cohabitating?

It is, to the best of my knowledge, the law of the state that issued the alimony award. You will need to check with an attorney in both the state that issued the alimony award and the state where the ex-spouse has relocated to be sure.

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

(42) After divorce, if the spouse receiving support moves out of state, which state’s laws are used to determine if they’re cohabitating with someone? – Quora

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2023 UT App 62 – Cox v. Cox – Adequacy of Court Findings

2023 UT App 62 – Cox v. Cox

THE UTAH COURT OF APPEALS

BLANCHE COX,

Appellee,

v.

JAMES A. COX,

Appellant.

Opinion

No. 20210455-CA

Filed June 8, 2023

Fourth District Court, Provo Department

The Honorable Lynn W. Davis

The Honorable Robert C. Lunnen

No. 124402230

Brett D. Cragun, Attorney for Appellant

Jarrod H. Jennings, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and JOHN D. LUTHY concurred.

TENNEY, Judge:

¶1 James and Blanche Cox were married for over 20 years, during which time they had 10 children and acquired a large number of marital assets. In September 2012, Blanche filed for divorce.[1] After 4 years of pretrial litigation and then 14 days of trial, the district court issued a 35-page divorce ruling that settled various issues relating to child custody, child support, alimony, and the division of the marital estate.

¶2        James now appeals, arguing that many of the court’s rulings were not supported by adequate findings. We agree with James with respect to each challenged ruling. We accordingly vacate those rulings and remand for further proceedings.

BACKGROUND

¶3        James and Blanche Cox were married in 1990. During their marriage, they had 10 children and acquired a large number of assets. In September 2012, Blanche filed for divorce. After 4 years of litigation, the case went to trial, and that trial occurred over the course of 14 days between December 2016 and May 2017. In January 2017 (while the trial was proceeding), the court issued a bifurcated divorce decree granting Blanche’s request for a divorce and reserving other issues for further hearings and determinations.

  1. The Ruling

¶4        In October 2017, the court issued a 35-page Ruling and Memorandum Decision (the Ruling) that entered findings of fact and legal determinations regarding many issues related to child custody, child support, alimony, and the valuation and division of the marital estate. This appeal implicates the court’s findings and determinations regarding essentially three groups of issues: the parties’ marital properties, alimony and child support, and marital debts.[2]

Marital Properties

¶5        The court found that James and Blanche “enjoyed the benefit or acquired” five properties during their marriage: (1) the Hildale Home, (2) the Henderson Home, (3) the Eagle Mountain Home, (4) the Rockville Property, and (5) the Cedar Highlands Lots. The court then entered findings and made rulings regarding how to divide the parties’ marital interest in each property.

¶6        The Hildale Home: The court found that James built this home (located, as our reference would suggest, in Hildale, Utah) before his marriage to Blanche. The court found that James, Blanche, and their children lived in this property until 2010, after which they moved to a different residence. The court heard testimony that title to the Hildale Home was held by the United Effort Plan Trust (the Trust). But the court then concluded that no evidence had been presented of the value of James’s interest in the Trust and that “establishing the value of a beneficial interest in property of the [Trust]” would be “practically and legally impossible.” The court acknowledged that Blanche had submitted an appraisal of the Hildale Home at trial (which, according to the record on appeal, estimated its value as being around $200,000), but the court concluded that the appraisal was deficient because it failed to account for costs and fees associated with the Trust ownership. From all this—and without any further explanation— the court then ruled that Blanche was “entitled to an award of $100,000” based on the home’s value.[3]

¶7        The Henderson Home: The court found that this home was purchased by James in 2004 for $420,000. It found that after the parties fell behind on mortgage payments, at which point they still owed around $288,000, the house was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time, according to Zillow, was $323,861.

¶8        But the court also heard competing testimony from the parties about whether the loss of the home could have been avoided. From Blanche, the court heard testimony that the home “could have been rented out” but that James refused to sign papers that would have modified the loan and, theoretically, allowed the parties to avoid losing it. From James, however, the court heard testimony that maintaining or leasing the home wasn’t actually possible for several different reasons.

¶9        From this, the court found that “[t]he parties would likely have had at least $100,000 in equity to split if they had kept” the Henderson Home and “rented it as suggested by [Blanche] numerous times.” The court then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.”

¶10 The Eagle Mountain Home: The court found that James and Blanche bought this home in 2009 and made a $120,000 down payment on it, $80,000 of which was borrowed from James’s mother. The court found that they moved into the home sometime in 2010 and began using it as their primary residence. James testified that he had at one point intended to sell the Eagle Mountain Home in an effort “to cover all the debts” on the parties’ credit cards but that Blanche refused to cooperate with him on the sale. Evidence presented at trial suggested that the home was sold in 2015 by a bankruptcy trustee for $520,000, with the parties still owing $292,000 at that time. Without citing any specific piece of evidence, the court found that if the Eagle Mountain Home had “not been lost to a forced sale, [Blanche] would have been able to receive at least another $25,000 today because of the current market value of $606,000,” and the court then ruled that she was “entitled to that sum.”

¶11      The Rockville Property: The court described this as a “7.5 acre parcel of farm property” located near Rockville, Utah. In its ruling on how to divide the marital interest in this property, the court referred to evidence it had received indicating that the parties were “forced to sell” the property for $270,000 after falling behind on the mortgage payments, as well as evidence showing that the parties still owed around $190,000 on the property when it was sold.

¶12      But the court then referred to several sources of evidence it had received that suggested that this property had a higher value and could have been sold for more. For example, it referred to evidence that a realtor had listed what the court thought was a similar 11.4 acre parcel for $1,195,000 (though the court then acknowledged that it was “debatable” whether this comparison provided an accurate valuation for the Rockville Property). The court also noted testimony that a realtor had valued the property at “approximately $900,000” due to “28 [shares of] water rights [that were] attached to it.” And the court referred to an “analysis from Zillow” that suggested the property’s value was $1,195,000.

¶13      From all this, the court then found that the forced sale of the property for $270,000 was a loss that “cost the parties at least $450,000 each,” and the court awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”

¶14 The Cedar Highlands Lots: The Cedar Highlands Lots were “two lots down by Cedar City,” one of which was around 2 acres and the other around 2.5 acres. The court found that the lots were purchased for $40,000 each sometime in 2003 but that they were later “lost” through a forced sale because of the parties’ ongoing failure to pay various taxes and fees.

¶15 At trial, there was conflicting evidence and argument about the amount of the loss suffered by the parties because of the sale of these lots. James testified that the parties lost $60,000, while Blanche claimed that they lost somewhere between $153,000 and $280,000 (with her estimate being largely based on the lots’ appreciation in value since the time that the parties had purchased them—and, thus, the parties’ loss of potential equity by virtue of the forced sale). The court ultimately found that the parties’ inability to “pay the property taxes and Homeowners Association fees . . . resulted in [an] $80,000 loss to the parties.” The court did not explain how it had arrived at the $80,000 amount, nor did it explain how this loss was to be distributed between the parties.

Alimony and Child Support

¶16 Blanche’s Income: Under an initial subheading of the Ruling that was entitled “The Parties[’] Income,” the court found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” but that she was currently a “self employed Uber/Lift driver and has been so since 2015.” Under a subsequent subheading entitled “Income of the Parties,” however, the court then determined that “[f]or child support purposes [Blanche’s] income cannot be imputed at more than [the] minimum wage of $1,257 per month.” Elsewhere in the Ruling, and without explanation for the discrepancy, the court found that Blanche’s imputed minimum wage income was actually $1,260 per month (rather than $1,257). The court included no explanation for its conclusion that Blanche’s income could not be imputed at more than the minimum wage.

¶17 Child Support: At the time of the Ruling, the parties had five minor children. The court initially ordered James to pay $3,781 per month in child support. Elsewhere in the Ruling, however, and again without explanation, the court stated that it was ordering James to pay $3,336 per month in child support.

¶18      Alimony: Turning to alimony, the court noted that under the controlling statute, it should consider a number of factors. One of the factors it considered was Blanche’s “financial condition and needs.” With respect to this factor, the court opined that Blanche’s “needs have been overstated in her financial declarations,” but the court made no ruling about Blanche’s financial condition and what her needs actually were. With respect to Blanche’s earning capacity, the court again noted that Blanche “claim[ed] she earns just a little better than minimum [wage] even though she is an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.” But the court made no further findings about her particular earning capacity as it related to a potential alimony award. The court also noted that there were “minor children in the home,” five of whom were “younger than eighteen years of age or have not yet graduated from high school with their expected class.” But the court made no findings about how (or how much) these children impacted Blanche’s earning capacity. Finally, with respect to James’s ability to pay alimony, the court found that James was a “voluntarily under employed” electrician, and it then opined that “[t]here is no question that [Blanche] claims that her needs exceed hers and [James’s] monthly incomes.” Considering these factors together, the court then ordered James to pay $8,286 per month in alimony.

Marital Debts

¶19 Finally, the court made certain findings concerning the “business debt” that was “incurred” by the parties during the marriage. While the divorce proceedings were pending, James filed a Chapter 7 bankruptcy petition. In the Ruling, the court found that, after the bankruptcy proceedings had begun, James incurred $30,000 in debt while purchasing stock in his business and business-related property from the bankruptcy trustee. Since the court determined that Blanche was “entitled to 50% of [the] value” of the business, the court then concluded that she was entitled to an award of $15,000 as a result of this debt.

¶20      The court also noted that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But the court opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” From this, and without further explanation, the court awarded Blanche “judgment against [James] in the amount of $50,000.”

  1. Motions for Clarification

¶21      James and Blanche were both dissatisfied with the Ruling, and in January 2018, they each filed a motion requesting clarification. Each motion raised a host of issues regarding alleged errors.

¶22      Of note here, in her motion, Blanche asked for clarification “as to whether or not” she was entitled to $25,000 for the Eagle Mountain Home or, instead, “another amount.” She argued that an award of $25,000 “seem[ed] incorrect mathematically” because if the fair market value of the Eagle Mountain Home was $606,000, and the home sold for $520,000, the “resulting equity would have been $86,000, which if divided equally would result in [Blanche] receiving judgment for $43,000,” as opposed to $25,000. Blanche also requested clarification as to the court’s determination “that the loss to the parties” concerning the Cedar Highlands Lots was $80,000. She argued that, based on the evidence presented at trial, the loss was $280,000. Blanche also requested clarification regarding the court’s determination of marital debts, specifically, whether the $15,000 was “to be added to the $50,000 for a total of $65,000” or whether “there [was] another number the court considered.” Finally, Blanche requested clarification of the court’s order regarding child support, given that in one portion of its Ruling the court ordered James to pay child support in the amount of $3,781 per month, and in another portion it altered that amount to $3,336 per month.

¶23 In his motion, James likewise requested clarification of various aspects of the Ruling. Among other things, he asked the court to “enter supplemental, amended, and or additional findings” regarding its ruling that Blanche was “entitled to $100,000” concerning the Hildale Home, explaining that he was “unaware of any evidence upon which the [court] could have relied in finding the $100,000 in equity the [court] awarded” Blanche. James also asked for clarification on the court’s findings concerning the Henderson Home, Eagle Mountain Home, and Rockville Property, asserting that the court had not “identified the facts upon which it relied” in making its calculations. Regarding the Henderson Home, James alleged that the court’s finding that “the parties would likely have had at least $100,000 in equity if the home had been rented” for the years 2013 through 2017 “fail[ed] to account for the costs of managing a rental property from a long distance, the likelihood of vacancies, the cost of utilities, maintenance, repairs, property taxes” and other related fees. Regarding the Eagle Mountain Home, James argued that the Ruling did not “accurately account for the additional $25,000” that Blanche received from the bankruptcy trustee “in addition to the $102,486.28 she received” from the sale. Regarding the Rockville Property, James requested clarification as to what facts the court relied upon to conclude that “the parties owned 28 shares of water,” given that the evidence “actually showed,” in his view, that they owned only 19 shares of water. Additionally, James requested clarification as to the court’s comparison of the Rockville Property to a parcel of “11.4 acre[s] of land with Virgin River frontage that was listed for $1,195,000.” Finally, with respect to the marital debts, James asked the court to “enter supplemental, amended and or additional findings” that would “identify the facts upon which [the court] relied in awarding [Blanche] $15,000 representing [the business’s] hypothetical equity or value.”

¶24 In the meantime, the Office of Recovery Services (ORS) intervened in the case based on its obligation to provide child support enforcement services. ORS filed a memo in response to Blanche’s motion for clarification in which it likewise requested clarification of the child support amount. After recounting its view of the evidence, ORS recommended that if Blanche’s income was imputed at minimum wage, and if James’s income was imputed at $18,500 per month, James should be ordered to pay $3,236 per month for the five minor children.

¶25      In August 2018, the court issued a ruling on James’s and Blanche’s motions. With respect to the child support amount, the court now ordered that James’s monthly obligation be $3,236 per month, thus apparently adopting ORS’s recommendation. With respect to the properties, the court now ruled—without explanation—that Blanche was entitled to $25,000 in relation to the Eagle Mountain Home and $40,000 for the Cedar Highland Lots. And with respect to the marital debts, the court found— again without explanation—that “[t]he $15,000 amount awarded is to be added to the $50,000 amount awarded for a total of $65,000” to be awarded to Blanche.

¶26 The court ordered Blanche’s counsel to prepare the final findings of fact and conclusions of law. In a November 2018 filing, however, Blanche alleged that she was unable to do so without “additional findings” regarding, among others, the marital debts. In May 2019, the court heard additional oral arguments. After the parties filed additional objections and motions, the case was reassigned from Judge Lynn Davis—who had heard the trial testimony and had issued both the Ruling and the rulings on the motions for clarification—to Judge Robert Lunnen. Judge Lunnen then heard oral arguments on the parties’ objections and outstanding motions.

  1. The Supplemental Decree

¶27      In April 2021, the court (through Judge Lunnen) issued a “Supplemental Decree of Divorce” (the Supplemental Decree).[4]

¶28 The Supplemental Decree reiterated and incorporated many of the findings and determinations from the Ruling. As in the Ruling, for example, the court awarded Blanche $100,000 for the Hildale Home, $50,000 for the Henderson Home, and the (clarified) amount of $40,000 for the Cedar Highlands Lots. But without explanation, the court altered the order regarding the Eagle Mountain Home, awarding Blanche $43,000 as opposed to the $25,000 that was previously ordered. Also without explanation, the court altered the order regarding the Rockville Property, first concluding that Blanche’s offset should be $38,000, not $42,000, and now awarding Blanche $412,000 from this property as opposed to the $408,000 that had previously been awarded.

¶29      The court also determined that Blanche’s income should be imputed at minimum wage for a total of $1,260 per month. Based on its findings about the parties’ incomes, it then ordered James to pay $3,236 per month in child support, and it again ordered him to pay $8,286 per month in alimony.

¶30 Finally, the court awarded Blanche $65,000 relating to the marital debts. The court explained that $15,000 of that amount “represent[ed] her interest” in various purchases made by James from the bankruptcy trustee and that the remaining $50,000 represented “her interest in other assets, business and otherwise.”

¶31      James timely appealed.

ISSUE AND STANDARD OF REVIEW

¶32 James argues that the district court issued “inadequate” fact findings to explain its rulings regarding the marital properties, child support and alimony, and marital debts. “We review the legal adequacy of findings of fact for correctness as a question of law.” Lay v. Lay, 2018 UT App 137, ¶ 4, 427 P.3d 1221 (quotation simplified); see also Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262 (“We review the legal sufficiency of factual findings—that is, whether the trial court’s factual findings are sufficient to support its legal conclusions—under a correction-of-error standard, according no particular deference to the trial court.” (quotation simplified)).[5]

ANALYSIS

¶33 A district court’s “[f]indings of fact are adequate . . . only when they are sufficiently detailed to disclose the steps by which the district court reached its ultimate conclusion on each issue.” Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397 P.3d 645. When assessing a challenge to the adequacy of a district court’s findings, we look to whether the court “adequately disclosed the analytic steps” it took in reaching its conclusions. Keiter v. Keiter, 2010 UT App 169, ¶ 21, 235 P.3d 782. In this sense, the court’s findings of fact must show that its “judgment or decree follows logically from, and is supported by, the evidence.” Id. ¶ 17 (quotation simplified). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the trial court’s reasoning.” Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258; see also Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882 (explaining that findings “are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based”). While “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made,” Fish, 2016 UT App 125, ¶ 22 (quotation simplified), we “will not imply any missing finding where there is a matrix of possible factual findings and we cannot ascertain the trial court’s actual findings,” Hall v. Hall, 858 P.2d 1018, 1025–26 (Utah Ct. App. 1993) (quotation simplified).

¶34 James argues that a number of the court’s findings were inadequate. His arguments address three groups of findings— namely, findings regarding (I) marital properties, (II) child support and alimony, and (III) marital debts. We address each group in turn.[6]

  1. Marital Properties

¶35 James first challenges the adequacy of the findings that supported the rulings about how to value and distribute the parties’ marital properties. We recognize at the outset that district courts “have considerable discretion in determining property distribution in divorce cases.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 11, 440 P.3d 757 (quotation simplified). But while a district court “does not have to accept [a party’s] proposed valuation” of an item in the marital estate, the court “does have to make findings sufficient to allow us to review and determine whether an equitable property award has been made.” Taft v. Taft, 2016 UT App 135, ¶ 53, 379 P.3d 890. In ruling on such a claim, we will uphold a district court’s “valuation of marital assets” if “the value is within the range of values established by all the testimony, and as long as the court’s findings are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Wadsworth v. Wadsworth, 2022 UT App 28, ¶ 64, 507 P.3d 385 (quotation simplified), cert. denied, 525 P.3d 1259 (Utah 2022).

  1. The Hildale Home

¶36 James first argues that the court’s findings regarding the Hildale Home were inadequate. In James’s view, the court “simply concluded that $100,000 was an appropriate amount of an award without providing factual findings” supporting “the appropriateness” of that award. We agree.

¶37 The court’s discussion of the Hildale Home spans roughly two pages of the Ruling. Much of the discussion concerns the ownership of the home. The court found that the home’s title is held by the Trust, that James’s interest in the home is that “of a beneficiary” to the Trust, and that Blanche, by contrast, is “not a legal beneficiary” of the Trust. But the court then found that “[n]o evidence was presented to the court of the value [of] [James’s] beneficial interest” in the Trust and that “establishing the value of a beneficial interest in property of the [Trust] is practically and legally impossible[,]” in part, because “the Trust is not receptive to, nor responsive to, legal inquiries.” The court also recognized that Blanche submitted an appraisal of the home, but it then concluded that the appraisal was not an adequate mechanism for establishing the home’s value because the appraisal failed to account for “title to the home being in the [Trust], the costs of getting the [Hildale Home] conveyed from the [Trust], or the thousands of dollars owed to the [court] appointed Trustee of the [Trust] which the Trustee is owed for administering the [Trust’s] assets.” After discounting its ability to rely on either James’s interest in the Trust or Blanche’s appraisal, the court ruled that the property was “a marital asset” to some “narrow extent.” Without further explanation, it then ruled that while it couldn’t grant title to Blanche, she was “entitled to an award of $100,000.”

¶38      We recognize the difficulties that the court faced with this trial in general—as should be clear by now, this was a very complicated divorce with a lot of things to decide and divide. And as evidenced by the preceding paragraph, the nature of parties’ apparent interest in the Hildale Home made the question of how to divide that interest particularly complicated. But even so, we see nothing in the Ruling that “adequately disclosed the analytic steps” the court took, Keiter, 2010 UT App 169, ¶ 21, when deciding that Blanche was entitled to $100,000. The court clearly explained what it thought it couldn’t rely on, but it didn’t explain what it thought it could rely on or how it arrived at this particular amount. Without such an explanation, James has no meaningful way to challenge that $100,000 award, nor do we have any meaningful way to assess whether it was legally warranted in light of the “matrix of possible factual findings” on this issue that are apparent from the record. Hall, 858 P.2d at 1025 (quotation simplified). We accordingly vacate this determination.

  1. The Henderson Home

¶39 James next argues that the court “did not provide any analysis” as to how it determined there was $100,000 in equity in the Henderson Home and that, as a result, the $50,000 award to Blanche was based on inadequate findings. We agree.

¶40      The court found that the home was purchased by James in 2004 for $420,000. It explained that by August 2012, James and Blanche were “months behind in their [mortgage] payment” and that they owed $288,000 when the home was “lost in a short sale in 2013 for $225,000.” The court made a finding that the fair market value of the home at the time—according to Zillow—was $323,861.[7] The court found that James and Blanche “would likely have had at least $100,000 in equity to split if they had” managed to keep the home, but because James “ignored” Blanche’s suggestions to rent the home out, which in theory would have prevented them from losing it, it then ruled that James “should be responsible to, and give [Blanche] credit for, $50,000 in equity representing her share of the lost asset dissipated by him.” It appears the court thus based the $50,000 award on its finding that “the parties could likely have rented and made money as shown or just maintained [the Henderson Home] and sold it for profit presently.”

¶41      James’s initial argument here is that it’s unclear how the court arrived at the $100,000 in equity that it then divided. In response, Blanche suggests that this amount could have been derived from the court’s apparent acceptance of the home’s fair market value as being $323,861 (a value derived from Zillow— which, again, neither party has challenged on appeal as being improper), an amount that is approximately (though, we note, not precisely) $100,000 more than the parties received in the short sale. We have some concern that Blanche is asking us to do too much inferential work on our own, and we could vacate on this basis alone. But in any event, the court’s division of the apparent equity also seems to have been based on a dissipation (or, perhaps, a waste) determination stemming from James’s conduct. Assuming this was so, the court’s findings about James’s conduct, whether the home could actually have been rented out, what the parties could have received in rent, and whether this unspoken amount would actually have prevented them from losing the home were all either missing or decidedly cursory. We’ve previously held, however, held that when a court rules that a party “should be held accountable for the dissipation of marital assets,” the court must support the ruling with “sufficiently detailed findings of fact that explain the trial court’s basis” for that ruling, and we’ve also laid out a number of factors that “may be relevant to” and could support such a ruling. Rayner v. Rayner, 2013 UT App 269, ¶¶ 19–21, 316 P.3d 455 (quotation simplified). While that list is not mandatory or exhaustive, we still have an inadequate findings-based foundation here from which we could review what seems to have been an implicit dissipation determination. When coupled with the lack of explanatory findings about the basis for the equity determination, we conclude that the findings about this home are, as a whole, legally inadequate to support meaningful appellate review of this ruling. We accordingly vacate them.

  1. The Eagle Mountain Home

¶42      James argues that the court’s findings regarding the Eagle Mountain Home were legally inadequate. We agree.

¶43 In the Ruling, the court (through Judge Davis) initially awarded Blanche $25,000 for this home. But the court failed to explain the analytic steps it took to arrive at that amount. The court did enter a few findings about this home—namely, that the parties made a $120,000 down payment when they purchased the home in 2009 ($80,000 of which was borrowed from James’s mother), that they were forced to sell it in 2015 in conjunction with James’s bankruptcy, and that, as a result of that sale, Blanche received “one half” of its equity. But the court made no findings about the sale price or how much equity the parties had in the home at the time of the sale. And then, without any explanation, the court opined that “[h]ad it not been lost to a forced sale,” Blanche “would have been able to receive at least another $25,000 today” because of the home’s “current market value.” The court provided no basis for the $25,000 amount, and we see no reasonable basis in its findings for inferring one.

¶44      Of note, the court (through Judge Lunnen) then changed the awarded amount in the Supplemental Decree, now awarding Blanche $43,000 for it. But the court didn’t explain why it increased this award from the award that had previously been entered in the Ruling. And while Blanche suggests on appeal that the court had now accepted a new valuation of the home that she offered in her motion for clarification, the court never said that it was doing so, nor did it provide any other explanation for why it increased this award at all, let alone by this particular amount.

¶45      In light of this procedural history, it’s unclear to us what analytic steps led the court to first award Blanche $25,000 for this home and what caused the court to later change that award to $43,000. As a result, the findings with respect to this home are legally inadequate and are therefore vacated.

  1. The Rockville Property

¶46      James argues that the court’s findings about the Rockville Property are legally inadequate because it’s “not clear” how the court “reached its valuation of the Rockville Property” or how it divided that value as part of its division of the marital estate. We agree.

¶47 In the Ruling, the court explained that the Rockville Property was a “7.5 acre parcel of farm property” owned by James and Blanche near Rockville, Utah. As for its value and how to determine that value, the court pointed to three options: (1) it noted that a realtor had listed a similar 11.4 acre parcel for $1,195,000, though the court opined that this valuation was “debatable”; (2) the court noted that Blanche “discussed” its value with a realtor who “indicated back then” (which, though unsaid by the court, seems from context to have been in 2013) that the “lot was worth approximately $900,000, due to the 28 water rights attached to it”; and (3) the court pointed to a “[c]urrent market value analysis from Zillow” that “estimate[d]” the property’s value at $1,195,000. The court then found that the parties were “forced to sell” the property in December 2013 for $270,000 due to financial troubles. And the court apparently faulted James for this, determining that at the time of the forced sale, the parties “only owed approximately $190,000” on the property, that it could have been refinanced, and that it was James’s fault that they did not do so. From this, the court found that the forced sale “cost the parties at least $450,000 each,” and it accordingly awarded Blanche “damages of $450,000 offset by monies she did receive in the amount of $42,000.”

¶48 From an adequacy-of-the-findings perspective, the initial problem here is that the court never stated whether it was accepting $1,195,000 or $900,000 as the property’s value. Given that the property’s value would be the numerator for any division of it as a marital asset, this omission is, of course, significant. And while Blanche invites us to engage in some loose math that would account for both possibilities and arrive at the same endpoint, the difference between the two initial valuations might matter if James wished to mount a sufficiency of the evidence challenge. Moreover, to the extent that the court’s determination about how to divide the property’s value turned on an implicit dissipation determination, we again note that the court failed to support such a determination with adequate findings. And finally, while the court offset the award to Blanche by “monies she did receive in the amount of $42,000,” an amount that it later changed to $38,000 in the Supplemental Decree, the court didn’t explain the basis for either amount in either ruling.[8]

¶49 Given the unanswered questions about how the court valued both this property and the offset, we have no basis for conducting a meaningful review of this award. We accordingly vacate it.

  1. The Cedar Highlands Lots

¶50 James’s final property-related challenge is to the findings regarding the Cedar Highlands Lots. In James’s view, the court improperly failed to “indicate . . . how the $80,000 was calculated.” We again agree.

¶51      In the Ruling, the court found that James and a business partner had purchased the two lots for $40,000 each, that Blanche had “controlled the book-keeping for the marital businesses,” and that the lots “were lost when the parties were unable or could not pay the property taxes and Home Owners Association fees,” thus “result[ing] in [an] $80,000 loss to the parties.” In a subsequent ruling, the court determined that this loss should now result in an award of $40,000 to Blanche, and that award was later confirmed in the Supplemental Decree.

¶52 From the court’s findings, it’s unclear why the court determined that there was an $80,000 loss. The court seems to have assumed that the lots were completely lost with no return in value, but the court never said so. And more importantly, even assuming that this was the implicit finding, the court never explained why it concluded that Blanche should receive an award of $40,000 as the result of this particular loss to the marital estate of $80,000. Without such an explanation, we have no meaningful basis for reviewing the ruling. As a result, we vacate it.

  1. Child Support and Alimony

¶53 James challenges the adequacy of the findings relating to child support and alimony. James’s challenges here fall into two groups: first, he challenges the adequacy of the findings relating to Blanche’s income (which, as explained below, matter to both child support and alimony); and second, with respect to the alimony determination, he challenges the adequacy of the court’s findings relating to Blanche’s financial condition and needs.

  1. Blanche’s Income

¶54      James argues that the court’s findings regarding Blanche’s income were inadequate because they failed to “provide any reasoning for disregarding [Blanche’s] earning capacity.” We agree.

¶55      A party’s income matters to a determination of both child support and alimony. First, with respect to child support, a “noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Twitchell v. Twitchell, 2022 UT App 49, ¶ 34, 509 P.3d 806 (quotation simplified); see also Utah Code §§ 78B-12-202, -301 (establishing guidelines for child support awards). Importantly, the court “is required to enter detailed and specific findings on all material issues which must be considered when making a child support award.” Breinholt v. Breinholt, 905 P.2d 877, 881 (Utah Ct. App. 1995) (quotation simplified). But “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman, 2017 UT App 192, ¶ 6 (quotation simplified). Second, with respect to alimony, a court must examine, among other factors, “the recipient’s earning capacity or ability to produce income.” Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242 (quotation simplified). And a court must in “all cases . . . support its alimony determinations with adequate findings . . . on all material issues,” and “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. ¶ 17 (quotation simplified).

¶56      Of note, when “there is insufficient evidence of one of the statutory alimony factors, courts may impute figures.” Gardner v. Gardner, 2019 UT 61, ¶ 98, 452 P.3d 1134 (quotation simplified). For example, a “court may impute income to a former spouse for purposes of calculating alimony after finding that the former spouse is voluntarily unemployed or voluntarily underemployed.” Fish, 2016 UT App 125, ¶ 15. And it “is not unusual for courts to impute income to a spouse who has not worked during the marriage (or who has not worked for a number of years preceding the divorce) but who is nevertheless capable of producing income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 26, 461 P.3d 1134 (emphasis in original). But when a court imputes income, the “imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Christensen v. Christensen, 2017 UT App 120, ¶ 22, 400 P.3d 1219 (quotation simplified); see also Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (“Before imputing income to a parent, the trial court must enter findings of fact as to the evidentiary basis for the imputation.” (quotation simplified)).

¶57      Income can likewise be imputed as part of a child support determination. See Utah Code § 78B-12-203(8). But, as with an alimony award, a court must support such an imputation with adequate findings. See id. § 78B-12-203(8)(a) (explaining that in contested cases, “[i]ncome may not be imputed to a parent unless,” after an evidentiary hearing on the matter, the court “enters findings of fact as to the evidentiary basis or the imputation”); id. § 78B-12-203(8)(b) (detailing the evidentiary bases upon which a court may impute income for child support purposes); see also Rayner, 2013 UT App 269, ¶ 10 (“Imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” (quotation simplified)).

¶58 Here, the court determined that although Blanche was currently working as a “self employed Uber/Lift driver,” her “income cannot be imputed at more than minimum wage of $1,257 per month.” In a different portion of the Ruling, however, the court found that Blanche’s “gross income” should actually be imputed at “$1,260 per month.”

¶59 On appeal, James doesn’t focus on this three-dollar discrepancy. Rather, James argues that the court erred by failing to explain why Blanche’s income should be imputed at minimum wage at all. As James points out, the court elsewhere found that Blanche is “an experienced bookkeeper with QuickBooks who has elected to be employed by About Faceology,” and it further found that she was “an experienced and sophisticated bookkeeper with many years of experience having run, managed, overseen and monitored millions of dollars in income and expenses that ran through the parties[’] businesses.”

¶60      Having reviewed the Ruling, we see no explanation for the court’s determination that, although Blanche is an experienced bookkeeper with the skill set to manage millions of dollars in income for a company, her income should still be imputed at minimum wage. In an attempt to justify this on appeal, Blanche points to a passing statement from the alimony portion of the ruling in which the court noted that the parties “have ten children, five of which are younger than eighteen years of age or have not yet graduated from high school with their expected class.” But as James points out in response, the parties had even more minor children at home during the years in which Blanche was working as a bookkeeper with responsibilities for “millions of dollars in income.” And while it’s possible that the court believed that something had now changed that would prevent Blanche from still doing this work (such as her new status as a post-divorce single parent), the court never said this or entered any findings to support such a determination, it never explained why it was implicitly determining that Blanche could work as an Uber/Lyft driver but not as a bookkeeper, and it entered no findings to explain why her current employment as an Uber/Lyft driver would result in an income imputation of minimum wage.

¶61      To be clear: as with the other issues in this appeal, we express no opinion about the proper resolution of any of these questions. But without an explanation from the district court, James has no basis for properly challenging the decision about Blanche’s income, nor do we have an adequate basis for reviewing it. Given the importance of Blanche’s income to both child support and alimony, we accordingly vacate those rulings.

  1. Blanche’s Financial Condition and Needs

¶62 As part of its alimony determination, the court was also required to consider Blanche’s “financial condition and needs.” Miner, 2021 UT App 77, ¶ 16 (quotation simplified). James argues that the court failed to enter adequate findings to support this assessment. We agree.

¶63 In the Ruling, the court noted that Blanche had claimed that she had “monthly needs of $18,565,” but it then concluded that these needs were “overstated.” And while Blanche had also suggested that she needed the alimony award to account for “over $200,000 in credit card and business debts,” the court suggested that this debt was either accounted for by other portions of its ruling or had “been discharged in the bankruptcy case.”

¶64 But even so, while the court then concluded that James “simply does not make sufficient money to satisfy all of [Blanche’s] claims” about what “she reasonably needs to support herself,” the court did not make any determination about what Blanche’s needs actually are. As James correctly points out, the absence of such an explanation prevents us from conducting a meaningful review of how this factor should weigh into the court’s alimony award, a problem that is compounded by the failure discussed above to adequately explain its determination about Blanche’s income.

¶65 We accordingly vacate the alimony award to allow the court to enter more detailed findings and, “if necessary, recalculat[e] . . . appropriate alimony.” Fitzgerald v. Fitzgerald, 2005 UT App 67U, para. 6 (quotation simplified); see also Eberhard v. Eberhard, 2019 UT App 114, ¶¶ 39–40, 449 P.3d 202 (faulting a district court for not “spelling out” “how much more [the petitioner] actually needs each month to pay down her debt and elevate herself to the marital standard of living,” thus leaving the appellate court “unable to discern whether the alimony award, in fact, exceeds her needs”).

III. Marital Debts

¶66 Finally, James challenges the adequacy of the court’s findings with respect to the parties’ marital debts. We agree that these findings are inadequate.

¶67      “In issuing a divorce decree, a trial court must include an order specifying which party is responsible for the payment of joint debts, obligations, or liabilities of the parties contracted or incurred during marriage.” Fox v. Fox, 2022 UT App 88, ¶ 32, 515 P.3d 481 (quotation simplified), cert. denied, 525 P.3d 1263 (Utah 2022); see also Utah Code § 30-3-5(3)(c)(i). Utah law “requires only a fair and equitable, not an equal, division of the marital debts.” Fox, 2022 UT App 88, ¶ 32 (quotation simplified). A district court is in the “best position to weigh the evidence, determine credibility and arrive at factual conclusions”; as a result, a district court’s division of marital debts is “entitled to a presumption of validity.” Mullins v. Mullins, 2016 UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified). But, again, the district court must enter findings of fact that are “sufficiently detailed to disclose the steps by which [it] reached its ultimate conclusion on each issue.” Oldroyd, 2017 UT App 45, ¶ 5.

¶68 Here, the court found that the “parties incurred business debt while married.” James challenges the adequacy of the findings with respect to two of those debts.

¶69      First, the court found that as a result of James’s bankruptcy, James took on $30,000 in debt to finance the purchase of his business’s stock and other business-related property. In the court’s view, Blanche was “entitled to 50% of [the] value” of the business, which meant, in its view, that she was also entitled to $15,000. But the court never explained why it concluded that Blanche was entitled to this amount. While it’s possible, as Blanche now suggests, that the court thought that James had drawn the $30,000 from marital assets—and, thus, that $15,000 of it belonged to Blanche—the court didn’t say this, and its reference to this as “$30,000” in “debt” that James had incurred is somewhat at odds with this inference. In the absence of any explanation, we vacate this ruling.

¶70      Second, at the close of the “Marital Debts” section of its ruling, the court found that Blanche had “received financial compensation from the sale of assets and the conversion of assets into cash.” But it then opined that it was “difficult, if not impossible, to decipher whether each expenditure was personal, business related, or partially business-related.” Without any further explanation, the court then held that Blanche

was “awarded judgment against [James] in the amount of $50,000.”

¶71                   It’s entirely unclear to us what the basis for this $50,000

award was. So far as we can tell, the court seems to have concluded that Blanche had already received some prior distributions from marital assets and that she should now receive $50,000 more. But there’s no explanation for how the court arrived at this particular amount, what the amount was linked to, or why it would be listed alongside an analysis of “Marital Debts.” Without any such explanation, we vacate this award.

CONCLUSION

¶72 We agree with James’s assertion that the challenged findings were not legally adequate and that these inadequacies impaired both his ability to challenge the court’s various rulings and our ability to review them. We accordingly vacate the above rulings and remand the case with instructions for the court to enter more detailed findings and then alter any of its rulings as may be necessary.

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[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality.

[2] In this Background, we’ll recount the main findings regarding each ruling at issue on appeal, but in some instances, additional relevant findings will be discussed in the Analysis below.

[3] With respect to some (though not all) of the dollar amounts included in the rulings at issue, the court added “.00” signifiers. For readability, those have been omitted throughout this opinion.

[4] As noted above, the court had previously entered a bifurcated divorce decree while the trial on the parties’ assets and the like was still ongoing.

[5] As evidenced by the passages quoted above, there’s something of a disconnect in how we’ve referred to this kind of argument in past cases. In some cases, we’ve described it as an argument about the “legal adequacy” of the district court’s findings, see, e.g.Lay v. Lay, 2018 UT App 137, ¶ 20, 427 P.3d 1221, but in others, we’ve described it as an argument about the “legal sufficiency” of the findings, see, e.g.Brown v. Babbitt, 2015 UT App 161, ¶ 5, 353 P.3d 1262. For consistency’s sake, it might be better if bench and bar alike settled on a single usage. And on reflection, we suggest that such an argument should be described in adequacy terms.

The reason for this is to reduce the potential for confusing this kind of argument with the similar sounding but substantively distinct “sufficiency of the evidence” argument. At the risk of over-simplification: a sufficiency of the evidence argument asserts that there was insufficient evidentiary support for a particular factual finding. As detailed more fully below, however, the argument at issue here—a challenge to the adequacy of the findings—asserts that the court’s findings did not adequately explain the basis for the court’s rulings, thereby impairing our ability to review those rulings (for sufficiency of the evidence or anything else).

[6]Two notes are warranted at the outset—one about our usage patterns regarding the rulings at issue, and one about a threshold argument made by Blanche.

First, as discussed above, there are two decisions that largely drive the various arguments in this case: the Ruling and the Supplemental Decree. The Ruling was issued by Judge Davis, who heard the trial evidence, while the Supplemental Decree was issued by Judge Lunnen, who was assigned to the case after the Ruling was issued. At one of the hearings in the intervening period, Judge Lunnen responded to a party’s argument by stating that “[t]he findings, they’re set in stone. So all this is . . . a result of the findings.” As noted, however, Judge Lunnen did alter a few of the Ruling’s legal determinations in the Supplemental Decree. In consequence of how this all played out, the Supplemental Decree recites many of the findings that were issued in the Ruling, though not with the same level of detail. It instead essentially incorporates the bulk of the Ruling by implicit reference. For this reason, the parties’ arguments on appeal have largely focused on whether the findings from the Ruling were adequate, and we’ll follow suit. To avoid redundancy, we won’t repeatedly mention whether we think the findings from the Supplemental Decree were likewise inadequate (even if they were reiterated in the Supplemental Decree); instead, we’ll discuss the Supplemental Decree only in those instances where it differs in some meaningful way from the Ruling (usually because of an altered legal determination).

Second, in her opening brief, Blanche argues that James did “not comply with Utah’s marshaling requirement” in his briefing on appeal. But the marshaling requirement applies when a party “seeks to prevail in challenging the sufficiency of the evidence to support a factual finding or a verdict on appeal.” State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645; see also State v. Wall, 2020 UT App 36, ¶ 53, 460 P.3d 1058; Wilson v. Sanders, 2019 UT App 126, ¶ 17, 447 P.3d 1240. As noted, however, James is not arguing that there was insufficient evidence to support any particular finding. Rather, James is arguing that the findings were inadequate to explain the court’s various rulings. As we’ve explained, an argument about the adequacy of the findings presents a legal question. Because of this, “marshaling is not required.” Jensen v. Jensen, 2009 UT App 1, ¶ 8 n.3, 203 P.3d 1020; see also Woodward v. Fazzio, 823 P.2d 474, 477–78 (Utah Ct. App. 1991) (“There is, in effect, no need for an appellant to marshal the evidence when the findings are so inadequate that they cannot be meaningfully challenged as factual determinations. . . . Rather, appellant can simply argue the legal insufficiency of the court’s findings as framed.”).

 

[7] While a topic at oral argument, neither party raised on appeal the issue of whether the district court could appropriately rely on Zillow for its valuation of the property, as opposed to evidence submitted at trial. For this reason, we do not address the issue here.

[8] It seems possible (if not probable) that this offset was intended to reflect a determination that the parties received $80,000 in equity when they sold the property for $270,000 while still owing $190,000 on it. But if this was the determination, (1) the court didn’t say so, and (2) it also didn’t explain the basis for initially deviating upward by $2,000 to arrive at $42,000, nor did it explain the basis for subsequently deviating downward by $2,000 to arrive at $38,000.

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In a Simple, Uncontested Divorce in Utah, Is It Required to Submit to the Court Any Financial Information or Documentation About either Party or Both Parties Even if No Alimony Is Awarded or if No Debt/Property Is Being Divided at All?

Good question. The answer depends upon whether there are minor children for whom child support is ordered. Specifically, if and when child support is ordered, Utah Code § 78B-12-203 provides, in pertinent part:

(5)(b)  Each parent shall provide verification of current income. Each parent shall provide year-to-date pay stubs or employer statements and complete copies of tax returns from at least the most recent year unless the court finds the verification is not reasonably available. Verification of income from records maintained by the Department of Workforce Services may be substituted for pay stubs, employer statements, and income tax returns.

So, if child support is ordered, then each parent must file with the court (and serve upon each other) verification of current income.

Is proof of income required to be filed with the court when alimony is awarded? Oddly enough, no; however, all spouses (whether they have minor children) must, at the beginning of every case, exchange financial declarations with each other (they do not necessarily have to file them with the court), as required by Utah Rules of Civil Procedure Rule 26.1. The financial declaration requires each party to provide detailed information about: employment status, gross monthly income (both earned and unearned), monthly tax deductions from income, monthly expenses, business interests, financial assets, real estate, personal property, and debts owed.

Additionally, the following documents must be attached to the financial declaration:

(c) Financial declaration. Each party must serve on all other parties a fully completed Financial Declaration, using the court-approved form, and attachments. Each party must attach to the Financial Declaration the following:

(1) For every item and amount listed in the Financial Declaration, excluding monthly expenses, copies of statements verifying the amounts listed on the Financial Declaration that are reasonably available to the party.

(2) For the two tax years before the petition was filed, complete federal and state income tax returns, including Form W-2 and supporting tax schedules and attachments, filed by or on behalf of that party or by or on behalf of any entity in which the party has a majority or controlling interest, including, but not limited to, Form 1099 and Form K-1 with respect to that party.

(3) Pay stubs and other evidence of all earned and un-earned income for the 12 months before the petition was filed.

(4) All loan applications and financial statements prepared or used by the party within the 12 months before the petition was filed.

(5) Documents verifying the value of all real estate in which the party has an interest, including, but not limited to, the most recent appraisal, tax valuation and refinance documents.

(6) All statements for the 3 months before the petition was filed for all financial accounts, including, but not limited to checking, savings, money market funds, certificates of deposit, brokerage, investment, retirement, regardless of whether the account has been closed including those held in that party’s name, jointly with another person or entity, or as a trustee or guardian, or in someone else’s name on that party’s behalf.

(7) If the foregoing documents are not reasonably available or are in the possession of the other party, the party disclosing the Financial Declaration must estimate the amounts entered on the Financial Declaration, the basis for the estimation and an explanation why the documents are not available.

 

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Mintz v. Mintz – 2023 UT App 17

Mintz v. Mintz – 2023 UT App 17

THE UTAH COURT OF APPEALS

RAYNA ELIZABETH MINTZ,

Appellant and Cross-appellee,

v.

GLEN RYAN MINTZ,

Appellee and Cross-appellant.

Opinion

No. 20200507-CA

Filed February 9, 2023

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 174500034

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

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

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

MORTENSEN, Judge:

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

BACKGROUND[3]

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

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

ANALYSIS
I. Alimony

A.        Investment

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

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

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

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

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

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

¶22 Second, to justify an alimony award that includes an amount for investment, the parties’ acts of investing must also contribute to the “marital standard of living.” Id. “Standard of living is defined as a minimum of necessities, comforts, or luxuries that is essential to maintaining a person in customary or proper status or circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct. App. 1991) (cleaned up) (emphasis added). In other words, in the alimony context, the marital standard of living is all that the parties enjoyed during the marriage—including luxuries and customary allocations—by virtue of their financial position. See id.see also Rule v. Rule, 2017 UT App 137, ¶ 15, 402 P.3d 153.

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

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

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

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

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

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

B.         Entertainment

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

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

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

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

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

II. Book of Business

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

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

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

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

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

Another read,

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

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

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

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

III. Dissipation

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

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

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

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

IV. Property Distribution Appreciation

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

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

¶46      The decree instructed Glen “to ‘transfer’ equities valued at the exact amounts set forth.” (Emphasis added.) But in her motion, Rayna requested not only those exact amounts but also “post-trial appreciation over and above the exact figures set forth.” On appeal, Rayna concedes that “the decree said nothing about who should receive the appreciation that accrued” post-trial. Accordingly, we agree with the district court that to award the relief that Rayna sought would require the district court to “read language into” the decree “in a way that modifie[d] or amend[ed]” it. See Mitchell v. Mitchell, 2011 UT App 41, ¶ 5, 248 P.3d 65 (“We interpret a divorce decree according to established rules of contract interpretation.” (cleaned up)); see also Brady v. Park, 2019 UT 16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of the contract is unambiguous, the parties’ intentions are determined from the plain meaning of the contractual language . . . .” (cleaned up)).

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

V. Investment Income

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

 

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

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

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

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

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

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

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Myers v. Myers 2023 UT App 20 – Alimony Modification

Myers v. Myers 2023 UT App 20

2023 UT App 20

THE UTAH COURT OF APPEALS

AMY R. MYERS, Appellee, v. JACOB W. MYERS, Appellant.

Opinion

No. 20220002-CA

Filed March 2, 2023

Sixth District Court, Richfield Department

The Honorable Brody L. Keisel

No. 184600056

Benjamin L. Wilson, Attorney for Appellant

Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1        After more than two decades of marriage, Jacob and Amy Myers divorced in 2018, and mutually agreed to the terms of their divorce. In particular, they agreed that Jacob[1] would pay Amy $916 per month in child support and $2,300 per month in alimony. Less than two years later, Jacob filed a petition to modify the divorce decree, asserting that both his and Amy’s income had changed since the divorce. The district court, after holding a trial, denied Jacob’s petition to modify, and Jacob appeals that denial, asserting that the court erred in determining that Amy’s ability to earn had not changed and in failing to make findings regarding Amy’s reasonable expenses. We find merit in Jacob’s positions, and therefore reverse and remand.

BACKGROUND

¶2        Jacob and Amy Myers married in 1995, but divorced in 2018 after some twenty-three years of marriage. When they divorced, one of their children (born in 2001) was still a minor, but all their children are now adults. Throughout most of their marriage, Jacob worked in oil production as a rig manager. His position paid relatively well—at the time of the divorce, he was earning $8,233 per month—but required him to work a nontraditional schedule (two weeks on, two weeks off), and in addition the job was sometimes dangerous and often involved the operation of heavy machinery.

¶3        While Jacob worked in the oil fields, the couple decided that Amy would—at least until the children were grown—forgo steady employment outside the home in order to care for the children. Amy did, however, run a small “foot zoning” business from which she earned approximately $250 per month.

¶4        In April 2018, Amy filed for divorce, citing irreconcilable differences. Jacob did not contest Amy’s petition; instead, the parties—neither of which were, at the time, represented by counsel—filed a joint stipulation, using forms provided by the court’s self-help center, agreeing to resolve all matters related to the divorce petition. As amended, the stipulation provided that Jacob would pay Amy $916 per month in child support—at least for another year or two until the parties’ youngest child reached the age of majority—and $2,300 per month in alimony. Jacob’s obligation to pay alimony was to last twenty-three years—until April 2041—unless Amy remarried or cohabited before that.

¶5        In the stipulation, the parties agreed that Jacob’s income was $8,233 per month, and that Amy’s income was $250 per month, and those figures were apparently used to calculate Jacob’s child support obligation according to applicable guidelines. But the stipulation contained no indication of how Jacob’s alimony obligation was calculated; in particular, the stipulation was silent as to what Amy’s reasonable monthly expenses might be.

¶6        Using court-approved forms, the parties incorporated the terms of their stipulation into proposed findings of fact and conclusions of law, as well as a proposed divorce decree, and the district court signed the documents, thus finalizing the parties’ divorce, in May 2018. The final documents, like the parties’ amended stipulation, provided that Jacob would pay $916 per month in child support and $2,300 per month in alimony, but contained no findings about Amy’s reasonable monthly expenses.

¶7        About eighteen months later, in November 2019, Jacob— now represented by an attorney—filed a petition to modify the alimony award contained in the decree. In the petition, Jacob alleged that “the income of both parties has significantly changed since their divorce was finalized.” With regard to his own income, Jacob alleged that he was “no longer working in the oil fields” because he was “no longer able to work the same work schedule and the same type of work because of how it was negatively affecting him.” He asserted that he was “going back to school” in an effort to begin a different career, and that he was “currently not working.” With regard to Amy’s income, Jacob alleged that Amy had become employed and earned $1,200 per month, and that her “self-employment income” had increased to $1,500 per month, such that Amy’s total monthly income was $2,700. Jacob alleged that the changes in the parties’ respective incomes constituted a “substantial change in circumstances that warrants a modification” of the alimony award.

¶8        Just a few weeks later, in January 2020, Amy—also now represented by an attorney—filed a motion for an order to show cause, asserting (among other things) that Jacob had failed to fully comply with his child support and alimony obligations. The court issued an order commanding Jacob to appear and show cause why he should not be held in contempt of court, and later held an evidentiary hearing to consider the matter. At that hearing, the court found that Jacob had “voluntarily quit his employment” in the oil fields and that, “if he hadn’t, he would have been able to pay what was ordered.” The court thus found Jacob in contempt and ordered him to pay Amy more than $22,000 in back child support and nearly $6,000 in unpaid alimony.

¶9        In the meantime, Jacob’s petition to modify remained pending, and the parties exchanged updated financial declarations in anticipation of an eventual trial. Amy’s first updated financial declaration, signed in December 2019, listed total annual income of nearly $11,000 (or about $889 per month) from three different sources: a new job, her foot zoning business, and teaching yoga classes. In this same declaration, Amy set forth monthly expenses of $4,084, with some of the expenses being at least partially attributable to her youngest child, who was still living in the home with Amy at that point. Then in August 2021, on the day of trial, Amy submitted a second updated financial declaration. According to this new declaration, Amy had recently obtained a different job, this one full-time, that paid her $45,000 per year ($3,750 per month). In addition, Amy stated that she earned $241 per month from her foot zoning business and $22 per week teaching yoga. She also asserted that her monthly expenses had increased to $4,795 (although the line-items listed in the declaration add to only $4,613), even though no children were living with her any longer. Among the changes from the 2019 declaration were a $500 increase in healthcare expenses, a $175 increase in real estate maintenance, a $100 increase in entertainment expenses, and an $88 increase in utilities.

¶10      In August 2021, the district court held a one-day bench trial to consider Jacob’s petition to modify. The only two witnesses to testify were Jacob and Amy. During his testimony, Jacob explained that he voluntarily left his position in the oil fields because he was no longer able to focus on his job duties to the degree he wanted, and he was worried that—due to the dangerous nature of the work—he would injure himself or someone else. However, he acknowledged, on cross-examination, that he was still physically able to perform the duties of the job; that his employer had not asked him to leave; that he had not received mental health counseling to address his concerns about the stress of his work; that he could have taken a leave of absence to address those issues and “gone back to” his job after that; and that if he had done so, he would still “be able to . . . pay the $2,300 a month in alimony.” He testified that, as of the time of trial, he was working at a home improvement warehouse earning $14 per hour, or $2,426 each month.

¶11      During her testimony, Amy testified that she had recently obtained full-time employment with the local chamber of commerce, in which she earned a salary of $3,750 per month. In response to direct questioning about this job, Amy conceded that she has “the ability to earn at least $3,750 a month,” and that she would be able to “do that moving forward.” In addition, she acknowledged that she earned additional income from her foot zoning business and her work as a yoga instructor. Amy testified that she earned some $100 per month from teaching yoga. With regard to her foot zoning business, she testified that she averaged ten treatments per month and charges $50 per treatment, and therefore earns $500 per month in revenue. But she testified that she must pay certain expenses associated with the business that eat up most of the revenue, resulting in her making only some $90 per year (or $7.50 per month) in profit. On cross-examination, she acknowledged that her total gross income from all sources, before expenses, was approximately $4,350 per month.

¶12 Amy testified that she was still living in the same house that the couple had been living in during the marriage, but that now—at the time of trial—she was living there alone because her children were grown and gone. With regard to expenses, she testified that her total monthly expenses were $4,084 in 2019 but had increased to $4,795 at the time of trial, despite the fact that, by the time of trial, she was living alone. She explained that new health insurance and home maintenance costs were largely responsible for the increase. But then, in response to a direct question about how her expenses at the time of the 2018 divorce compared to her expenses at the time of the 2021 modification trial, she testified that her expenses had “stayed the same.”

¶13      After trial, the parties (through counsel) submitted written closing arguments. Amy argued that, for purposes of the alimony computation, the court should impute to Jacob the same income he had made in the oil fields, find there to be no material and substantial change in circumstances, and on that basis dismiss the petition to modify. For his part, Jacob argued that the court should modify (or even terminate) his alimony obligation because Amy was now employed full-time and had the ability to provide for her own needs. In particular, Jacob argued that Amy’s reasonable expenses were in actuality less than the amounts reflected on her recent financial declaration and in her testimony, and that her increased income was sufficient to meet those needs.

¶14      A few weeks later, the district court issued a written ruling denying Jacob’s petition to modify. In its ruling, the court found that Jacob had voluntarily quit his job in the oil fields, and that his monthly income had decreased from $8,233 to $2,427. The court also found that Amy “currently works” for the local chamber of commerce “earning $45,000 annually,” and that Amy “also has side businesses doing foot treatments and teaching yoga.” But the court made no specific finding regarding Amy’s total income.

¶15      Building on these findings, the court concluded that Jacob’s change in income constituted “a substantial material change in circumstances that was not expressly stated in the decree.” The court did not separately analyze whether the change in Amy’s income also constituted such a change in circumstances.

¶16      Having concluded that there existed a substantial material change in circumstances, the court proceeded to “consider whether modification [of the alimony award] is appropriate.” The court began its analysis by examining Jacob’s income situation, and concluded that, because Jacob had left his job voluntarily and had not sustained any loss in earning capacity, Jacob “remains able to earn income at the level he was earning at the oil fields.” Accordingly, the court imputed to Jacob an income of $8,233 per month for purposes of the alimony calculation.

¶17 With regard to Amy’s expenses, the court found that her “financial needs . . . [have] not changed since” 2018, when “the stipulated decree was entered,” but made no specific finding as to the exact amount of those expenses.

¶18 And with respect to Amy’s earning capacity, the court offered its view that the “determinative factor[]” was not Amy’s income but, instead, her “ability to provide” for herself. On that score, the court found that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce,” and therefore concluded that—despite her increased income—her earning capacity had not changed. In so ruling, the court observed that it was Jacob’s “unilateral decision” to leave his job that compelled Amy to “obtain employment to provide for herself,” and stated that reducing Jacob’s alimony obligation where the precipitating event “was [Jacob’s] decision to leave his employment would set a precedent allowing parties who have stipulated to pay alimony to renege on that stipulation by taking a much lower paying job and forcing receiving parties to find additional employment by stopping alimony payments.”[2]

ISSUE AND STANDARDS OF REVIEW

¶19 Jacob now appeals the court’s denial of his petition to modify. In this context, “we review the district court’s underlying findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159, and we review its determination regarding the presence or absence of a substantial change of circumstances, as well as its ultimate determination regarding the petition to modify, for an abuse of discretion, see id.see also Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The district court’s choice of, and application of, the appropriate legal standard, however, “presents an issue of law that we review for correctness.” Peeples, 2019 UT App 207, ¶ 11.

ANALYSIS

¶20 We begin our analysis with a general discussion of petitions to modify alimony awards and the process courts are to follow when adjudicating such petitions. We then address Jacob’s claim that the court failed to follow the correct process in this case.

I

¶21      After a district court has made an award of alimony, the court “retains continuing jurisdiction to” modify that award “when it finds that there has been a substantial material change in circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7, 405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-5(8)(i)(i) (2019).[3] If the court determines that no substantial material change in circumstances has occurred, then the court’s analysis ends, and the petition to modify the alimony award is properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d 431 (“As a threshold issue, before modifying an alimony award, the court must find a substantial material change in circumstances . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of a petition to modify on the ground that there existed no substantial material change in circumstances).

¶22      If, however, the court finds that a substantial material change in circumstances has occurred, the court must conduct a complete analysis regarding whether the alimony award remains appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that, once a finding of changed circumstances “has been made, the court must then consider” the alimony factors (emphasis added) (quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This analysis should include examination of the statutory alimony factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors commonly referred to as “the Jones factors,” see Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155, ¶ 7 (stating that, after finding that circumstances have changed, “the court must then consider at least the following factors in determining a new alimony award: (i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide support; and (iv) the length of the marriage” (quotation simplified)). “These factors apply not only to an initial award of alimony, but also to a redetermination of alimony during a modification proceeding.” Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103.

¶23      “Consideration of these factors is critical to achieving the purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14, 414 P.3d 1023, which are “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge,” Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “The core function of alimony is therefore economic— it should not operate as a penalty against the payor nor a reward to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378.

¶24      “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Id. (quotation simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand”). Because a recipient spouse’s demonstrated need constitutes an effective “ceiling” on an alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481, courts often begin their analysis by assessing whether recipient spouses are able to meet their reasonable needs through their own income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (stating that, in determining alimony, courts will generally “first assess the needs of the parties, in light of their marital standard of living” (quotation simplified)). If the recipient spouse is able to meet his or her own needs, then the analysis ends, and no award should be made, but if “the recipient spouse is not able to meet [his or] her own needs, then [the court] should assess whether the payor spouse’s income, after meeting his [or her] needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” See id. (quotation simplified).

¶25      When considering the relevant alimony factors, courts are “required to make adequate factual findings on all material issues, unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Bukunowski v. Bukunowski, 2003 UT App 357, ¶ 9, 80 P.3d 153 (quotation simplified). When a district court fails to enter specific findings regarding “the needs and condition of the recipient spouse, making effective review of the alimony award impossible, that omission is an abuse of discretion.” Id. ¶ 10.

II

¶26 With these principles in mind, we turn our attention to Jacob’s assertion that the court failed to follow the correct process in adjudicating his petition to modify. In particular, Jacob asserts that the court—once it determined that there had been a substantial material change in circumstances—was required to conduct a complete analysis of all the alimony factors, and that it failed to properly do so.[4] We find merit in Jacob’s argument.

¶27      The district court started its analysis in the proper place, and assessed whether Jacob had demonstrated that there had been a substantial material change in circumstances that would justify reopening the alimony inquiry. Looking just at the change in Jacob’s own income, the court made a finding that there had been a “substantial change in circumstances.” And neither party takes issue with this finding on appeal; both appear to acknowledge the correctness of the court’s initial determination that circumstances affecting these parties had changed enough to justify a second look at the alimony situation.[5]

¶28 From there, though, the court’s analysis strayed from the proper path. After determining that the change in Jacob’s income constituted a substantial material change in circumstances, the court did not conduct a full analysis of the relevant alimony factors. With regard to Amy’s needs, the court’s analysis, in full, was simply this: “[Amyl testified that her monthly expenses have not increased from the time the parties were divorced in May 2018 until the time of trial in August of 2021.” The court made no finding that Amy’s testimony on that point was credible, see Rehn v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not merely restate the recipient spouse’s testimony regarding her monthly expenses.” (quotation simplified)), and did not make any effort to assess what Amy’s reasonable monthly needs actually were; the court’s comparison to the 2018 divorce decree is especially unhelpful, in context, because that decree contained no specific determination regarding Amy’s expenses.

¶29 With regard to the parties’ earning capacity, the court acknowledged that Amy had obtained a full-time job that paid her $3,750 each month, and that Amy “earns additional income from a foot zoning business and teaching yoga.” But the court made no finding as to what Amy’s total income actually was, stating that “[n]o evidence was presented that [Amy] has obtained extra education or has otherwise increased her ability to earn since the time of the divorce, only that her actual income has increased.”

¶30 And with regard to Jacob, the court found that he had voluntarily left his job in the oil fields, and that he “remains able to earn income at the level he was earning” before. On that basis, the court imputed to Jacob income of $8,233 per month, despite the fact that Jacob was no longer earning that amount. Jacob takes no issue with this imputation determination on appeal.

¶31      The court then completed its analysis by stating as follows: “[Amy’s] financial needs and both parties’ ability to earn has not changed since the time the stipulated decree was entered. Therefore, [Jacob’s] Petition to Modify the alimony ordered in the decree is DENIED.”

¶32 In our view, the court was, at least to some extent, conflating the “changed circumstances” part of the analysis with the “Jones factors” part of the analysis. Its first mistake was failing to make a specific finding regarding Amy’s reasonable monthly needs. As noted, no such finding had been made in connection with the 2018 decree, and Amy had submitted two conflicting financial declarations since then. In order to complete the multi-factor alimony analysis mandated by the court’s unchallenged conclusion that circumstances had materially changed, the court needed to make an actual finding regarding Amy’s expenses.[6]

¶33 The next error the court made was in determining that Amy’s earning capacity had not changed, even though her income had. And here, it is important to differentiate between situations in which a spouse’s income goes down from situations in which a spouse’s income goes up. Certainly, where a spouse’s income goes down, it does not necessarily follow—indeed, it often does not follow—that the spouse’s earning capacity has also gone down; in such situations, courts retain the discretion to determine that, even though a spouse’s income has gone down, his or her earning capacity has not been diminished, and to impute to the spouse— for instance, on the basis of a finding of voluntary underemployment—an income in line with the unchanged earning capacity. See, e.g.Olson v. Olson, 704 P.2d 564, 566 (Utah 1985) (stating that where parties “experience[] a temporary decrease in income, [their] historical earnings must be taken into account in determining the amount of alimony to be paid”); Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612 (noting that “a finding of voluntary underemployment is not a prerequisite to imputing income,” and affirming a trial court’s determination to assess the payor spouse’s income at a higher level than his current income because the current lower income was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism about a payor spouse’s sudden drop in income where the spouse “came into trial making a huge amount of money . . . and then all of a sudden is making no money because, you know, now it’s time to pay somebody” (quotation simplified)). Indeed, the district court made precisely such a finding with regard to Jacob, and no party takes issue with that finding here on appeal.

¶34 But the fact that a spouse’s income has gone up is very strong evidence that the spouse’s earning capacity has also risen. A party who is actually earning $45,000 per year will nearly always properly be deemed to have the capacity to earn at least that amount. There are, of course, exceptions: in some isolated instances, an increase in income is temporary and does not reflect an overall or long-term increase in earning capacity. See English v. English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties “experience[] unusual prosperity during one year,” that unusual income figure is not necessarily indicative of earning capacity); see alsoe.g.Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247 (holding that a spouse’s earning capacity, moving forward, was not reflected by three “retroactive salary bonuses” that were not likely to occur in the future, and stating that, since the spouse’s “elevated salary during [the] period [in which he received those bonuses] is totally disproportionate to his actual earning capacity, his support obligation should reflect his earning capacity rather than his actual earnings”). But before concluding that a spouse’s earning capacity is less than the spouse’s actual income, a court should have evidence that the spouse’s higher income is truly ephemeral and not indicative of long-term earning capacity.

¶35      No such evidence is present here. Amy has obtained a full-time salaried position that pays her a steady income of $45,000 per year. There is no indication that this job is only temporarily available to her. The evidence was undisputed that Amy’s earning capacity, moving forward, has increased, as exemplified by her new job; indeed, she testified that she has “the ability to earn at least $3,750 a month” at that job, and that she would be able to “do that moving forward.” The district court’s observation that Amy had not “obtained extra education” in an effort to grow her earning capacity is true as far as it goes. But even in the absence of any extra education or training, a spouse’s earning capacity can rise, and a spouse’s ability to obtain and maintain a salaried job is an extremely strong piece of evidence so indicating.

¶36      We certainly take the court’s point that the reason Amy felt compelled to find additional employment was because Jacob made the decision to quit his job and pay her less in alimony. In the court’s view, Jacob’s decision “forc[ed]” Amy “to find additional employment.” We take no issue with the court’s observation that the law should not incentivize payor spouses to become voluntarily underemployed. But we do not think the law contains any such incentive; indeed, the customary (and presumably adequate) remedy for such behavior is for the court— where appropriate, and as the court did here—to find the payor spouse underemployed and impute to that spouse an income commensurate with the previous salary.[7]

¶37 Thus, we conclude that the district court erred in its analysis of Amy’s earning capacity. It erroneously determined that Amy’s earning capacity had not changed. And based on this determination, it stopped short of making a specific finding as to what Amy’s new earning capacity was, taking into account her new full-time job and, if appropriate, her part-time side endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 31, 437 P.3d 411 (“When determining an alimony award, it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, including income from a second job.” (quotation simplified)). The court should remedy these errors on remand, and should complete the calculation regarding Amy’s expenses and earning capacity, thus answering the question Jacob raises, namely, whether Amy has the ability to take care of her own needs through her own income.

¶38      Finally, the court’s analysis regarding Jacob’s ability to provide support was also incomplete, and will require additional analysis in the event the court concludes that Amy is not completely able to pay for all of her reasonable monthly needs. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219 (“[I]f the court finds that the recipient spouse is not able to meet her own needs, then it should assess whether the payor spouse’s income, after meeting his needs, is sufficient to make up some or all of the shortfall between the recipient spouse’s needs and income.” (quotation simplified)). As already noted, the court imputed to Jacob a monthly income of $8,233, based on a finding of voluntary underemployment, and that determination is not challenged on appeal. But in order to compute Jacob’s ability to provide support to Amy to cover any determined shortfall, the court will need to compute Jacob’s reasonable monthly expenses, see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings should also address the obligor’s needs and expenditures, such as housing, payment of debts, and other living expenses.” (quotation simplified)), which the court did not endeavor to do in its order.

¶39      As to whether a shortfall exists, the parties take divergent positions on appeal. Jacob asserts that no shortfall exists, and that Amy is able to pay all of her own reasonable monthly expenses. Amy, for her part, contends that even with her newly increased income she still has “a shortfall of over $1,800.” But Jacob’s alimony obligation ($2,300) apparently exceeds even Amy’s current calculation of her shortfall; under Amy’s computation of expenses, then, Jacob would still be entitled to at least some modification of his alimony obligation. On remand, the district court should run this complete calculation, making specific findings on each of the relevant factors, and should determine the extent to which Jacob’s alimony obligation should be modified.

CONCLUSION

¶40      The district court did not apply the proper legal analysis to Jacob’s petition to modify, and erred when it concluded that Amy’s earning capacity had not changed. We reverse the court’s denial of Jacob’s petition to modify, and remand this case for further proceedings consistent with this opinion.

 

 

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

[2] Amy does not argue that we should affirm the denial of Jacob’s petition to modify on the basis that the original award was derived from a stipulation, and therefore the district court’s comments about holding Jacob to his stipulation are not directly before this court. But we note, for clarity, that even stipulated alimony awards are subject to modification. See, e.g.Diener v. Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a court “is certainly empowered to consider the circumstances surrounding an existing stipulation when considering a petition to modify . . . , the law was intended to give the courts power to disregard the stipulations or agreements of the parties . . . and enter judgment for such alimony . . . as appears reasonable, and to thereafter modify such judgments when change of circumstances justifies it, regardless of attempts of the parties to control the matter by contract” (quotation simplified)); accord Sill v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415.

[3] At the time Jacob filed his petition to modify, the relevant statute authorized modification of alimony awards when the movant could demonstrate that there had been “a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In 2021, prior to the trial on Jacob’s petition to modify, our legislature amended that statutory provision; under current law, modification is authorized upon a showing that there has been “a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.” Id. § 30-3-5(11)(a) (2022) (emphasis added). In this appeal, the parties have not briefed the question of which version of the statute applies to Jacob’s petition to modify, nor has either side suggested that the outcome of this case turns on these differences in statutory text. Operating on the assumption that Jacob is entitled to application of the version of the statute in effect when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829 (stating that “we apply the law as it exists at the time of the event regulated by the law in question,” and that when that event is a motion, “we apply the law as it exists at the time the motion is filed”), we apply the 2019 version of the statute in this appeal, but follow the parties’ lead in presuming this application to have no effect on the outcome of the case.

 

[4] Amy characterizes Jacob’s appellate claims as assertions that the district court’s findings were inadequate, and argues based on this characterization that Jacob—by not asking the court to make more detailed findings—failed to preserve his claims for appellate review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a party “waives any argument regarding whether the district court’s findings of fact were sufficiently detailed when the [party] fails to challenge the detail, or adequacy, of the findings with the district court” (quotation simplified)). While we acknowledge— as discussed herein—that the court did not make findings on several of the alimony factors, that was due to the court’s error (discussed herein) regarding Amy’s earning capacity, and its concomitant failure to complete the proper legal analysis. Thus, we disagree with Amy’s characterization of Jacob’s claims on appeal, and note that Jacob certainly preserved for our review the general question of whether the district court applied the correct legal analysis to his petition to modify, as well as the more specific question of whether Amy can meet her needs through her own income. Thus, we reject Amy’s assertion that Jacob’s contentions on appeal were not properly preserved for our review.

[5] We note that the court made this determination by looking solely at the change in Jacob’s income. Arguably, the change in Amy’s income would constitute a second basis for a determination that circumstances had changed significantly enough to revisit the appropriateness of the alimony award. Ultimately, however, it does not matter, for purposes of this appeal, which change the district court relied on to determine that a substantial material change had taken place.

[6] Amy argues that the “facts concerning [her] financial needs and conditions are clear from the record,” and on that basis urges us to excuse the court’s failure to make a specific finding. We disagree with the premise of Amy’s argument. At trial, Amy testified that her expenses had stayed the same since May 2018, but there was no 2018 figure to which Amy’s testimony could be compared. Moreover, after 2018, Amy submitted two conflicting financial declarations and, at trial, Jacob’s attorney established that Amy was then living alone rather than with one or more of the parties’ children. We therefore agree with Jacob that the evidence in the record regarding Amy’s expenses was sufficiently conflicting as to be significantly less than “clear.”

[7] Moreover, we do not think it inappropriate, in the abstract, for payee spouses to make an effort to enter the workforce, and thereby pursue a higher standard of living and a greater degree of independence from the payor spouse. We recognize that many spouses who have long been out of the workforce may find it difficult to reenter it, with or without additional education or training; generally speaking, our law does not require payee spouses in that situation to attempt to reenter the workforce in ways incongruous with their employment history. But a spouse who, whether by chance or perseverance, manages to gain a foothold in the workforce after a long absence may very well benefit from the experience; as we see it, our law should encourage self-sustainability and independence. Accordingly, we do not necessarily view—as the district court seemed to—the outcome of Amy’s employment journey to be an unfortunate one.

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What Amount of Money Can I Expect to Get Monthly if I Divorce My Husband Successfully and He Has to Pay Alimony and Child Support for One Child (He Makes About 45 Thousand Dollars a Year)?

This is not a good question for Quora. Better for you to consult with an attorney in the jurisdiction where you reside with your husband. It’s worth the money for about an hour-long consultation with a knowledgeable, experienced, and honest attorney. Do it. Don’t pinch pennies to stay ignorant about this subject. It’s nothing like what you think.

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

https://www.quora.com/What-amount-of-money-can-I-expect-to-get-monthly-if-I-divorce-my-husband-successfully-and-he-has-to-pay-alimony-and-child-support-for-one-child-He-makes-about-45-thousand-dollars-a-year/answer/Eric-Johnson-311

 

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What Justifications Are There for Alimony in 2022?

It’s a good question.

Clearly, in an earlier time, when one member of a married couple almost always had substantially more ability to be self-supporting, alimony made a lot more sense then than it does now.

Back when man owned and controlled most, if not all, of the marital property and not only had far greater opportunities for gainful employment than did women, especially married women, but were expected to support their wives financially, and given that housewives were often at a disadvantage in the workforce subsequent to divorce as a result of being out of the workforce due to bearing and caring for a married couple’s children, alimony made good moral, fiscal, and common sense.

Perhaps the most compelling reason governments support the concept of alimony in the event of a divorce is this: ordering one spouse to pay alimony to the other prevents the alimony recipient from becoming a public charge (otherwise stated, from becoming dependent upon government financial assistance, and thus saving the taxpayer money).

Clearly, an innocent spouse who has been wronged by his/her spouse in a manner that temporarily or even permanently impedes the innocent spouse’s ability to be self-reliant and/or to enjoy the lifestyle to which the innocent spouse became accustomed during the marriage may have, and usually does have, a sound argument for receiving alimony.

But one of the biggest problems with alimony today, however, one of the things it makes it so hard to justify in the modern age, is when a spouse chooses to leave a marriage and expects to receive alimony when the other spouse is innocent of any wrongdoing in the marriage.

By way of analogy (and bear in mind that this is an analogy, not a perfect equivalence), nobody would sympathize with an employee who quits his job yet still expects the employer to keep paying him a salary thereafter. That’s not how that relationship works. The employee gets paid in exchange for working for the employer. When you choose not to work for the employer, the employer is relieved of any obligation to pay you.

Why, then, is it fair for a wife to leave and divorce her husband, when the husband has done no wrong, yet still expect the husband to provide for the wife financially to any degree? It’s not. Plainly not.

Marriage is not purely contractual, but there is a contractual element to marriage, clearly. Inherent in that contractual element is a mutual obligation of support between spouses; they take care of each other. A spouse who honors his marital and spousal obligations should not be compelled by force of law to continue to honor those obligations if and when his spouse chooses not to reciprocate. Otherwise stated: you are free to end the marriage at any time, if you so choose, but ending the marriage means that everything inherent in the marriage ends; both your obligations and your entitlements. You no longer have any obligations to your spouse (because he’s not your spouse anymore), and your spouse no longer has any obligations to you (because he’s not your spouse anymore).

When spouses who leave faultless spouses claim that they nevertheless still have a right to be financially supported by their faultless ex-spouses on the basis of being unable to support themselves or to support the lifestyle to which they became accustomed during the marriage without financial support from their ex-spouses, such an argument completely disregards the natural consequence of the choice to divorce a faultless spouse. Your self-imposed inability to support yourself after quitting a well-paying job you may not have liked does not entitle you to demand a living from anyone else. Your inability to fly or levitate does not entitle you to live when you choose to jump off a 300 foot cliff.

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

https://www.quora.com/What-justifications-are-there-for-alimony-in-2022/answer/Eric-Johnson-311

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Taylor v. Taylor – 2022 UT 35 – Divorce Arbitration

IN THE

SUPREME COURT OF THE STATE OF UTAH

DAVID JENKINS TAYLOR,

Appellant,

v.

JILL MARIE TAYLOR,

Appellee.

No. 20191090

Heard: April 13, 2022

Filed August 18, 2022

On Certification from the Court of Appeals

Third District, Summit County

The Honorable Teresa Welch

No. 174500181

Attorneys:

Julie J. Nelson, Millcreek, Erin B. Hull, Salt Lake City, for appellant

Martin N. Olsen, Beau J. Olsen, Midvale, for appellee

ASSOCIATE CHIEF JUSTICE PEARCE authored the opinion of the Court,

in which CHIEF JUSTICE DURRANT, JUSTICE PETERSEN, JUSTICE HAGEN,

and JUDGE HARRIS joined.

Due to their retirement, JUSTICE HIMONAS and JUSTICE LEE did not

participate herein; JUSTICE DIANA HAGEN and COURT OF APPEALS

JUDGE RYAN M. HARRIS sat.*

[*] JUSTICE DIANA HAGEN became a member of the Court on May 18, 2022 but sat as a visiting judge prior to her confirmation.

 

ASSOCIATE CHIEF JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 After litigating their divorce for a year, David Taylor asked his soon-to-be ex-wife, Jill Taylor, to arbitrate. David apparently hoped for an expeditious resolution that would allow him to receive favorable tax treatment of the alimony he was about to pay. After the arbitrator issued his decision, David moved the district court to invalidate the award under section 78B-11-107 of the Utah Uniform Arbitration Act, arguing that the arbitration agreement he proposed was invalid because it was contrary to public policy to arbitrate divorce actions. David alternatively asked the court to vacate the award, arguing that the arbitrator had manifestly disregarded the law. The district court denied David‘s motion.

¶2 The Utah Uniform Arbitration Act does not permit a party who participates in arbitration without objection to then contest an arbitration award by arguing that it is based on an infirm agreement to arbitrate. But even if David was able to contest the award, the arbitration agreement he sought was not invalid. Unless and until the Legislature provides additional guidance, the intersection of the Utah Uniform Arbitration Act and Utah family code permits parties to arbitrate the aspects of a divorce that the Taylors agreed to arbitrate. As for David‘s assertion that the arbitrator manifestly disregarded the law, even if we assume that is still a viable challenge to an arbitration award, David has not shown that the arbitrator manifestly disregarded the law. We affirm the district court.

BACKGROUND

¶3 In August 2017, Jill Taylor filed for divorce from her husband, David Taylor. Jill and David stipulated to joint legal and physical custody of their two children but were unable to agree on, among other things, alimony, child support, and the appropriate division of their assets.

¶4 David wanted to resolve the parties‘ remaining issues by the end of 2018 so that he could avoid changes to the tax treatment of alimony that were slated to take effect the following year. To expedite a resolution, David asked Jill to attend arbitration in lieu of trial. Jill obliged, and the parties signed an arbitration agreement. The agreement provided that the Utah Uniform Arbitration Act (UUAA) would apply. See UTAH CODE §§ 78B-11-101 to -131. The agreement also named a retired district court judge as the arbitrator.

¶5 The parties engaged in an arbitration process that saw the arbitrator meet with each party separately and repeatedly. The arbitrator reviewed various expert reports as well as documents that detailed the parties’ employment history, earnings, and job prospects.

¶6 To determine Jill‘s income, the arbitrator reviewed evidence regarding Jill‘s past employment in finance and pharmaceutical sales. He also reviewed a report David‘s vocational expert prepared that detailed wage estimates for various jobs available to Jill based on Jill‘s qualifications and prior work experience. The arbitrator also spoke with Jill, who explained that she was currently working as an aide in the Park City School District and that she intended to seek employment as an elementary school teacher once she had completed her degree in elementary education.

¶7 After considering the parties‘ positions and submissions, the arbitrator issued an award. Among other things, the arbitrator‘s award calculated alimony, set the amount of child support, and divided the parties‘ assets.

¶8 As part of that decision, the arbitrator estimated Jill‘s future income. The arbitrator concluded that “[Jill] should be allowed to work in the field of her choice—education, and she should be given time to complete her degree.” He calculated Jill‘s income for 2019 – 2021 based on her salary as an aide and her ability to find work during the summer, and for 2022 according to her ability to secure a full-time teaching position once she had completed her degree. As to alimony, the arbitrator awarded Jill spousal support based on the parties‘ current financial situations and spending needs, including Jill‘s tuition costs.

¶9 A few months after the arbitrator issued the award, David moved the district court to correct three mathematical miscalculations. The district court made two of those corrections and entered the corrected award.

¶10 Less than two months later, David changed counsel and moved the district court to invalidate the entire arbitration award pursuant to section 78B-11-107 of the UUAA.[1] David argued that “[a]n arbitration agreement is not valid or binding in the divorce context” for three “well-defined” policy reasons.

¶11 David first claimed that arbitration interfered with a court’s “inherent” and “nondelegable” authority to decide divorce issues. As David saw it, “[b]ecause parties cannot divest a court of jurisdiction by stipulati[on]” or delegation to a third party, it was necessarily true that they could not divest a court of jurisdiction by arbitration.

¶12 David next asserted that the UUAA permits modification of an arbitration award “only in . . . very limited circumstances,” and such a “bar against modif[ication] . . . is flatly against the policy of ensuring that district courts retain ongoing jurisdiction to modify divorce-related rulings.”

¶13 David additionally contended that the UUAA’s limited appeal procedures impermissibly restrict the parties’ statutory right to appeal the arbitrator‘s child support determination.

¶14 Alternatively, David asked the district court to vacate the arbitration award because the arbitrator manifestly disregarded the law—and thus exceeded his authority—when he calculated Jill’s imputed income.[2] David claimed that Utah law requires the arbitrator to consider a list of factors when calculating the parties’ incomes. See UTAH CODE § 78B-12-203(8)(b)(i)–(x). And David asserted that the arbitrator had substituted his “personal view” in place of those factors when he opined that Jill’s income should be based on her desire “to work in the field of her choice.”

¶15 David also argued that the arbitrator manifestly disregarded the law when he included Jill’s tuition costs in the alimony budget. David contended that those costs were “not a part of the parties’ standard of living during the marriage, nor [were they] a ‘need,’” and were thus “the epitome of an unnecessary expense, given that [Jill was] intending to pay to attend school so that she may earn less than she already earns.”

¶16 Jill moved the district court to confirm the arbitration award and enter a decree of divorce.

¶17 A court commissioner heard the parties’ motions. The commissioner denied David’s motion and granted Jill‘s. The commissioner concluded that contrary to David‘s position, public policy supports the arbitration of divorce cases. She reasoned that arbitration does not interfere with a court‘s continued jurisdiction because ―[o]nce the arbitration award is reduced to a Decree of Divorce, the [c]ourt maintains jurisdiction to modify the decree based upon a material and substantial change in circumstances.” The commissioner also concluded that ―waiving the right to appeal is not contrary to law” because parties routinely waive their right to appeal ―when the parties stipulate and a Decree of Divorce is entered.”

¶18 As to David’s claim that the arbitrator had manifestly disregarded the law, the commissioner determined that the arbitrator’s calculation regarding Jill‘s income was ―rational and evidence based.” She explained that Utah law does not require a court to calculate income according to ―the highest level.” Rather, ―[t]he imputation need[ed] to be reasonable and equitable,” and ―[i]t [was] not unreasonable to allow [Jill] to select a job that gives her a decent living rather than maximizing what a vocational evaluator opines.” The commissioner also upheld the arbitrator’s alimony award. The commissioner explained that ―the standard of living during the marriage was such that [Jill] did not need to work full time.” Therefore, ―[t]he fact that tuition was provided so [Jill] could increase her earning potential, and that alimony was actually limited to the same time period as child support, was reasonable and equitable.”

¶19 David asked the district court to overrule the commissioner’s decision and made basically the same arguments he had included in his motion to invalidate or vacate the arbitration award.

¶20 The district court denied David’s request to overrule the commissioner and confirmed the arbitration award. The court held that ―Utah law does not preclude divorces from being arbitrated” for four reasons. The court first determined that ―the plain language of the [UUAA] does not preclude divorce actions from being arbitrated,” and ―had the Utah legislature intended for divorce actions to be precluded from being arbitrated, it would have indicated so.” The court next opined that the same public policies that favor arbitration in the civil context—―just, speedy, and inexpensive outcomes”—also ―support parties being able to resolve their divorce cases in Utah via arbitration.” The court stated that ―[i]n fact, [David] invoked and relied on these policy considerations by proactively requesting to arbitrate this matter . . . as opposed to setting it for trial.” The court further reasoned that ―the plain language of the [UUAA] indicates that district court judges retain jurisdiction and the authority to vacate or amend arbitrations that run afoul of Utah law.” Therefore, the court said, ―[i]t follows that for divorce cases that have been arbitrated, a district court . . . cannot change or amend arbitration awards if [it] merely disagree[s] with the arbitrator’s findings and conclusions” but it can ―vacate or amend arbitration awards that contain provisions that run contrary to established Utah law.” The court finally concluded that even if ―any substantive appellate rights are waived” by participation in arbitration, that waiver ―is not contrary to Utah law, as Utah law indicates that there are various procedures wherein parties may agree to pursue expedited outcomes of their matters in exchange for giving up certain appellate rights.”

¶21 The district court also concluded that the arbitrator had not manifestly disregarded the law. The court determined that ―[the arbitrator]’s method of imputing [Jill]‘s income complied with Utah law.” The district court reasoned that Utah law required the arbitrator to calculate Jill‘s income by considering the relevant statutory factors, which, according to the court, ―do[] not define ’employment potential and probable earnings‘ as being the equivalent of the highest or maximum amount of salary that a party could attempt to obtain” and ―recognize[] that a parties‘ ’employment potential and probable earnings‘ encompass[] more considerations than just salary calculations for any given job.” And the court held that the arbitrator had ―effectively considered and applied the pertinent statutory factors” and ―was not unreasonable” in permitting Jill to work in the field of her choice, which would allow for ―more stable and ongoing” employment than if the arbitrator ―require[d] [Jill] to work a job in a field that she had not been working in for many years.”

¶22 Additionally, the district court opined that “[the arbitrator]‘s alimony determinations” also “complied with Utah law.” The court reasoned that the arbitrator acted in accordance with the statute when he based the alimony award on expenses, such as Jill‘s tuition costs, that “existed at the time of the arbitration.” The district court also noted that the arbitrator had ―limited [David]‘s alimony obligation—i.e., . . . [he] did not order an alimony award for the length of the marriage, nor did [he] order that the alimony award . . . remain the same regardless of [Jill]‘s efforts to obtain employment as a teacher.”

¶23 ―In sum,” the district court concluded, ―[the arbitrator]‘s findings and decisions regarding [Jill]‘s imputed income and the alimony award were informed, reasonable, equitable, and complied with Utah law.” David appeals.

STANDARD OF REVIEW

¶24 ―In reviewing the order of the district court confirming, vacating, or modifying an arbitration award, we grant no deference to the court‘s conclusions of law, reviewing them for correctness.” Softsolutions, Inc. v. Brigham Young Univ., 2000 UT 46, ¶ 12, 1 P.3d 1095; see also Westgate Resorts, Ltd. v. Adel, 2016 UT 24, ¶ 9, 378 P.3d 93 (―When we hear an appeal from a district court‘s review of an arbitration award, . . . we review the district court‘s interpretation of the UUAA . . . for correctness, without deference to its legal conclusions.”).

ANALYSIS

  1. THE DISTRICT COURT CORRECTLY DENIED DAVID‘S
    MOTION TO INVALIDATE THE ARBITRATION AWARD
  2. Utah Law Does Not Permit David to Contest the Validity
    of the Arbitration Agreement After He Participated in
    Arbitration Without Objection

¶25 David asks us to reverse the district court, set aside the arbitration agreement and award, and “order the district court to conduct a regular divorce trial.”

¶26 Section 78B-11-107 of the UUAA, the provision on which David hangs his appeal, states in pertinent part: ―An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” UTAH CODE § 78B-11-107(1).

¶27 David reads section 78B-11-107 to mean that a matter is not eligible for arbitration if there is “a ground that exists at law or in equity for the revocation of a contract.” David argues that if a matter is not eligible for arbitration, the parties‘ arbitration agreement—and any arbitration award flowing from that agreement—is invalid.

¶28 ―When interpreting a statute, our primary objective is to ascertain the intent of the legislature,” ―[t]he best evidence” of which ―is the plain language of the statute itself.” McKitrick v. Gibson, 2021 UT 48, ¶ 19, 496 P.3d 147 (alteration in original) (citations omitted). ―[W]e read the plain language of the statute as a whole[] and interpret its provisions in harmony with other statutes in the same chapter and related chapters.” State v. Bess, 2019 UT 70, ¶ 25, 473 P.3d 157 (alterations in original) (citation omitted).

¶29 By its plain language, section 78B-11-107 speaks to the “valid[ity], enforceab[ility], and irrevocab[ility]” of an arbitration agreement. See UTAH CODE § 78B-11-107(1). Section 78B-11-107 establishes the standard by which a court may judge—or the parties may contest—the existence of a “valid, enforceable, and irrevocable” arbitration agreement. But while section 78B-11-107 instructs us on how to assess the validity of an arbitration agreement, it does not speak to what to do with an arbitration award.

¶30 Other sections of the UUAA, however, do tell us what to do when a party challenges an arbitration award. Cf. Jenkins v. Percival, 962 P.2d 796, 799–800 (Utah 1998) (explaining that “[s]eparate parts of an act should not be construed in isolation from the rest of the act,” and “constru[ing]” two sections of the UUAA “in tandem so as to give full effect to the intended scope of the Act” (citation omitted)). UUAA section 78B-11-123, for instance, explains that a court must confirm an arbitration award “unless the award is modified or corrected . . . or is vacated” pursuant to the grounds set forth in section 78B-11-124. One of those grounds permits a court to vacate an arbitration award “if[] . . . there was no agreement to arbitrate, unless the person [contesting the award] participated in the arbitration proceeding without raising an objection [as to lack or insufficiency of notice] not later than the beginning of the arbitration hearing.” UTAH CODE § 78B-11-124(1)(e) (emphasis added).

¶31 David does not argue, in the words of section 78B-11­124(1)(e), that “there was no agreement to arbitrate.” He instead argues that the arbitration agreement, though existing, is invalid. Stated differently, David contends that section 78B-11-124(1)(e) does not govern his challenge because he had an agreement to arbitrate, just not a valid one. This argument elevates form over function. An argument that there is no arbitration agreement differs in degree, but not kind, from an argument that there is no valid arbitration agreement. Therefore, when a party seeks to set aside an arbitration award by contesting the validity of the arbitration agreement, that claim must be analyzed under the strictures of section 78B-11­124(1)(e).

¶32 Importantly, then, if a party participates in arbitration without proper objection, she is unable to challenge the resulting arbitration award for want of a valid arbitration agreement.[3] Section 78B-11-107 is simply not a mechanism that allows a party to see what result she gets in arbitration before deciding to contest the validity of the arbitration agreement.

¶33 David did not object to arbitration. He asked for it. And without proper objection, see id. § 78B-11-124(1)(e), David cannot rely on section 78B-11-107 to invalidate the arbitration award.[4]

  1. Divorce Cases Are Arbitrable

¶34 David lost the chance to contest the arbitration agreement and award when he participated in arbitration without objection, and so we affirm the district court‘s denial of David‘s motion to invalidate. But we recognize that even if we were to reach the merits of David‘s argument, it would still fail.

¶35 David argues that the UUAA and Utah divorce law conflict such that divorce cases are not eligible for arbitration. He claims that family code and case law impose a ―nondelegable duty” on district courts to make and modify final decisions regarding alimony, property division, child support, and custody. David contends that this is incompatible with the UUAA, which, according to David, ―does not allow a court to supplant its own judgment for that of the arbitrator” and ―does not allow ongoing jurisdiction for modification.” And he asks us to resolve this conflict by concluding that the ―more particular” divorce law prevails over ―the general Arbitration Act.” See, e.g.Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616 (―[A] statute dealing specifically with a particular issue prevails over a more general statute that arguably also deals with the same issue.”).

¶36 Jill claims there is no conflict between divorce law and the UUAA. As she reads it, ―[t]he plain language of the [UUAA] shows that there is nothing in the statute to indicate that divorce cases should be precluded from arbitration.” Jill also argues, among other things, that the UUAA does not divest a district court of its authority to ensure that arbitration awards are equitable and based in law and that family code expressly preserves a court‘s continuing jurisdiction to modify a divorce decree.

¶37 We begin our analysis ―by looking at the plain language of the statute[s] because it is ‗the best evidence of legislative intent.‘” Rosser v. Rosser, 2021 UT 71, ¶ 42, 502 P.3d 294 (citation omitted). ―Our first undertaking in this regard is to assess the language and structure of the statute[s].” State v. Rushton, 2017 UT 21, ¶ 11, 395 P.3d 92. In so doing, “[w]e presume that the legislature used each word advisedly, and that the expression of one [term] should be interpreted as the exclusion of another . . . .” Bountiful City v. Baize, 2021 UT 9, ¶ 42, 487 P.3d 71 (second alteration in original) (citation omitted) (internal quotation marks omitted).

¶38 The UUAA governs the arbitration process in Utah. See UTAH CODE § 78B-11-101 to -131. It “applies to any agreement to arbitrate made on or after May 6, 2002.”[5] UTAH CODE § 78B-11-104(1) (emphasis added). The UUAA further states that “[a]n agreement . . . to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” Id. § 78B-11-107(1) (emphasis added). More simply put, the UUAA applies to “any agreement to arbitrate” “any existing or subsequent controversy arising between the parties to the agreement.” Id. §§ 78B-11-104(1), 107(1) (emphases added); see also Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 33, 44 P.3d 663 (“Under the [UUAA], parties can agree to arbitrate any controversy.”). The UUAA does not expressly exempt any action or issue, including those related to divorce, from its provisions. Thus, by the UUAA‘s plain language, the Taylors‘ agreement to arbitrate certain aspects of their divorce—alimony, property division, and child support—falls into the category of “any agreement to arbitrate.”

¶39 Neither Utah‘s family code nor case law, moreover, squarely addresses the arbitrability of divorce issues. Utah Code section 30-3-10.9—the only section of our family code in which the word “arbitration” appears—states that divorcing parents must include in their parenting plan “[a] process for resolving disputes,” such as “counseling,” “mediation or arbitration by a specified individual or agency,” or “court action.” UTAH CODE § 30-3-10.9(3)(a)–(c). That section also states that “the district court has the right of review from the dispute resolution process.” Id. § 30-3-10.9(4)(f). But while the code seemingly allows divorcing parties to submit “future disputes” over the provisions of a parenting plan to non-binding arbitration, it does not explicitly forbid—or permit—parties from agreeing to arbitrate their divorces.

¶40 David argues that plain language, by itself, does not answer the question. And he credibly points to sections of Utah family law that seem to conflict with the provisions of the UUAA dealing with vacatur and modification. He argues that these conflicts require us to conclude that it is contrary to public policy for divorcing parties to submit their alimony, property division, child support, and custody-related disputes to arbitration.

¶41 We take David‘s point. A plain language look at the UUAA and our family code spotlights two statutory schemes that do not speak to each other. The Legislature could have spelled out, either in the UUAA or our family code, if, when, and what portions of a divorce may be submitted to arbitration. It did not. But that does not end our inquiry.

¶42 ―If,” after looking at plain language, ―there is doubt or uncertainty as to the meaning or application of the provisions” at issue, Osuala v. Aetna Life & Cas., 608 P.2d 242, 243 (Utah 1980), ―we attempt to construe [the provisions] in harmony, and such that ‗effect is given to every provision,‘” I.M.L. v. State, 2002 UT 110, ¶ 26, 61 P.3d 1038 (citations omitted); see also Field v. Boyer Co., 952 P.2d 1078, 1081 (Utah 1998) (―[I]t is the Court‘s duty to harmonize and reconcile statutory provisions, since the Court cannot presume that the legislature intended to create a conflict.” (citation omitted)). We accomplish this task by ―analyz[ing] the [statutes] in [their] entirety, in the light of [their] objective, and . . . in accordance with the legislative intent and purpose.” Osuala, 608 P.2d at 243 (footnote omitted). In other words, we try to read the statutes together in a way that best keeps faith with what the Legislature wanted those statutes to accomplish.

  1. The UUAA Provisions Limiting Judicial Review Did Not Prevent the Taylors from Submitting Their Divorce Issues to Arbitration

¶43 The first area of potential conflict David highlights is the ability of the district court to disregard an arbitration award before it is entered. David contends that our divorce law demands that a district court retain final authority to reject an agreement between the parties or input by a third party ―based on equity.”[6] David claims that the UUAA, in contravention of divorce law, confines a district court‘s authority to disturb an arbitration award to the ―limited circumstances” laid out in section 78B-11-124. In other words, David argues that in the divorce context, an agreement between the parties or input by third parties can only constitute a recommendation to the district court, whereas under the UUAA, they are binding and difficult to set aside.

¶44 As an initial matter, we note the strong state policies underlying both the UUAA and Utah divorce law. As to arbitration, our law has long ―favor[ed] arbitration as a speedy and inexpensive method of adjudicating disputes” and ―easing court congestion.” Robinson & Wells, P.C. v. Warren, 669 P.2d 844, 846 (Utah 1983); accord Giannopulos v. Pappas, 15 P.2d 353, 356 (Utah 1932). We have held that ―judicial review of arbitration awards should not be pervasive in scope or susceptible to repetitive adjudications,” but rather ―strictly limited to the statutory grounds and procedures for review.” Robinson & Wells, 669 P.2d at 846; see also Buzas Baseball, Inc. v. Salt Lake Trappers, Inc., 925 P.2d 941, 947 (Utah 1996) (―A trial court faced with a motion to vacate or modify an arbitration award is limited to determining whether any of the very limited grounds for modification or vacatur exist.”); Duke v. Graham, 2007 UT 31, ¶ 8, 158 P.3d 540 (―A district court‘s review of an arbitration award should be narrowly confined to those grounds established by statute.”). ―As a general rule,” therefore, ―an arbitration award will not be disturbed on account of irregularities or informalities in the proceeding or because the court does not agree with the award as long as the proceeding was fair and honest and the substantial rights of the parties were respected.” DeVore v. IHC Hosps., Inc., 884 P.2d 1246, 1251 (Utah 1994).

¶45 Utah family law is likewise driven by strong public policy. Foremost among these is the bedrock understanding that equity should prevail when a marriage dissolves. See UTAH CODE § 30-3-5(1) (2018), amended by and renumbered as UTAH CODE § 30-3-5(2) (2022) (―When a decree of divorce is rendered, the court may include in the decree of divorce equitable orders.” (emphasis added)); see also Iverson v. Iverson, 526 P.2d 1126, 1127 (Utah 1974) (―[A]ll aspects of proceedings in divorce matters are equitable . . . .”); Lord v. Shaw, 665 P.2d 1288, 1291 (Utah 1983) (―A divorce action is highly equitable in nature . . . .”). When making divorce-related decisions, therefore, a district court is generally given ―broad discretionary powers” to craft an equitable result. Despain v. Despain, 610 P.2d 1303, 1305–06 (Utah 1980); see also UTAH CODE § 30-3-5(8)(e) (2018), amended by and renumbered as UTAH CODE § 30-3-5(10)(d) (2022) (requiring a court to ―consider all relevant facts and equitable principles” in determining alimony).

¶46 David correctly points out that we have held that an agreement between the parties serves only as a recommendation to the district court. See, e.g.Callister v. Callister, 261 P.2d 944, 946, 948– 49 (Utah 1953) (―[A]n agreement or stipulation between parties to a divorce suit . . . is not binding upon the court in entering a divorce decree, but serves only as a recommendation. . . . [T]he law was intended to give courts power to disregard the stipulations or agreements of the parties in the first instance and enter judgment . . . as appears reasonable . . . .”). And he contends that ―[b]ecause parties cannot divest a court of jurisdiction by stipulating to an agreement, it follows that they cannot divest a court of jurisdiction by delegating that task to . . . an arbitrator.”

¶47 Those cases stand for the proposition that parties cannot insulate stipulations they make regarding property division and alimony from judicial review. And we stand by that law. But we conclude that, in the absence of an express statutory prohibition, when divorcing parties make an informed and voluntary decision to submit their alimony and property-related disputes to a neutral third-party arbitrator under the UUAA, the strong policies allowing parties to choose to arbitrate their disputes overtake those policies favoring more robust judicial review.[7]

¶48 Arbitrations concerning alimony and division of marital property do not differ substantially from the types of cases that are routinely arbitrated. See, e.g.HITORQ, LLC v. TCC Veterinary Servs., Inc., 2021 UT 69, 502 P.3d 281 (compelling arbitration of a claim for dissolution of a veterinary clinic); Harold Selman, Inc. v. Box Elder Cnty., 2011 UT 18, 251 P.3d 804 (concluding that the Ombudsman‘s Office has statutory authority to arbitrate an ownership dispute between private property owners and Box Elder County); Shipp v. Peterson, 2021 UT App 25, 486 P.3d 70 (reinstating an arbitration award granting life insurance proceeds to listed beneficiary). In both camps of cases, adult parties—often aided by counsel—agree to have a neutral third party decide what is equitable. The policies favoring equitable decision-making that animate our family law do not disappear, but that work is outsourced to a neutral third party. And safeguards remain in place to revisit the outcome of the arbitration if the process is, among other things, tainted by fraud, corruption, or misconduct, or if the arbitrator exceeds her authority. See UTAH CODE § 78B-11-124(1).

¶49 Put another way, while we continue to recognize our state‘s policy in favor of ensuring that an arbitration award addressing alimony or marital property is equitable, we do not find that policy to be so strong as to require us to treat divorcing spouses— particularly those represented by counsel—differently from other parties who want to arbitrate their disputes. Therefore, until the Legislature amends one or the other of those statutory schemes to provide otherwise, we see no reason to revoke the trust we place in arbitrators to decide a property dispute between two parties, dealing at arm‘s length and capable of contracting, just because those parties are (or were) married. We thus conclude that nothing in the Utah family code prevents parties from agreeing to arbitrate their alimony and property disputes under the UUAA. Nor does any provision of the family code conflict with allowing the parties to agree to limit judicial review of the resulting award to those grounds given in section 78B-11-124 of the UUAA. See UTAH CODE § 78B-11-124(1).

¶50 Other courts have reached similar conclusions. The Supreme Court of New Jersey, for example, has concluded that “parties may bind themselves in separation agreements to arbitrate disputes over alimony.” Faherty v. Faherty, 477 A.2d 1257, 1262 (N.J. 1984). The court explained, “It is fair and reasonable that parties who have agreed to be bound by arbitration in a formal, written separation agreement should be so bound. Rather than frowning on arbitration of alimony disputes, public policy supports it.” Id. In line with this reasoning, the Faherty court held that “[a]s is the case with other arbitration awards,” an award addressing alimony is subject to the limited judicial review provided in its arbitration act. Id.

¶51 The Idaho Court of Appeals has, for many of the same reasons, decided that when divorcing parties submit their property-related disputes to arbitration, “judicial review of the award . . . is distinctly limited” to the statutory grounds provided in its arbitration act. Hughes v. Hughes, 851 P.2d 1007, 1009 (Idaho Ct. App. 1993). The Hughes court saw no difference between arbitration agreements between spouses and arbitration agreements between other parties who “have decided to substitute the final and binding judgment of an impartial entity conversant with the business world for the judgment of the courts.” Id. (citation omitted). And it held these agreements to the same standard: “Having chosen to submit the property division question to an arbitrator for resolution, the parties limited their recourse for judicial review.” Id. at 1009–10; see also Kelm v. Kelm, 623 N.E.2d 39, 41–42 (Ohio 1993) (pointing out its past “recogni[tion]” of “the validity and enforceability of agreements to arbitrate in many areas of the law,” as well as “the benefits of arbitration,” and “see[ing] no reason why” agreements to arbitrate domestic relations matters, including agreements to arbitrate alimony, “should not be included”); Miller v. Miller, 620 A.2d 1161, 1163–64 (Pa. Super. Ct. 1993) (determining that “parties should be able to settle their domestic disputes out of court,” and that “parties who have agreed to arbitrate should be bound by that decision”); Kovacs v. Kovacs, 633 A.2d 425, 432 (Md. Ct. Spec. App. 1993) (holding that arbitration awards regarding “alimony and property issues, if otherwise valid,” may ―be adopted without further consideration”); Bandas v. Bandas, 430 S.E.2d 706, 708 (Va. Ct. App. 1993) (noting that ―[n]owhere in the Uniform Arbitration Act, as adopted by Virginia, are courts required to review an arbitration agreement in a domestic relations context with more scrutiny than other disputes” and thus restricting judicial review of arbitration agreements in domestic relations cases to ―the standard set forth” in its Uniform Arbitration Act).

¶52 While we wait for further legislative clarity, we join these jurisdictions in concluding that divorcing parties may agree to subject their alimony and marital property disputes to the benefits and limitations of the UUAA.

¶53 The outcome changes in the child support and custody context. By statute, these issues are determined by the best interest of the child. See UTAH CODE § 30-3-5(5)(a) (2018), amended by and renumbered as UTAH CODE § 30-3-5(7)(a) (2022); id. § 78B-12-210(3). We have stated that parties may not agree to divest a district court of its responsibility to ensure that decisions concerning child support and custody are in the best interests of the child.

¶54 In In re E.H., for example, ―[w]e granted certiorari to consider the custody of a young boy, E.H.,” in light of a stipulation between E.H.‘s biological mother and adoptive parents ―assigning a psychologist the task of making recommendations concerning E.H.‘s best interests.” 2006 UT 36, ¶¶ 1, 3, 137 P.3d 809. We considered, specifically, ―whether the stipulation . . . was an impermissible delegation of authority to a third party.” Id. ¶ 3.

¶55 We explained that while ―the law favors the settlement of disputes,” id. ¶ 20, ―there are certain agreements that so compromise the core responsibilities of the court that they cannot be honored,” id. ¶ 21. And we concluded,

The stipulation between the mother and the adoptive parents did not unconstitutionally strip the district court of core functions because the district court did not surrender to [the psychologist] its authority to enter a custody order. Rather, the court merely agreed to follow a process for the determination of the best interests of E.H. and to uphold this process so long as it adequately served that end.

Id. We thus ―ultimately upheld the stipulation because the parties‘ arrangement ‗adequately served [the] end‘ of determining E.H.‘s best interest and the district court had ‘satisf[ied] itself that [the psychologist]‘s recommendations were properly arrived at.‘” R.B. v. L.B., 2014 UT App 270, ¶ 14, 339 P.3d 137 (alterations in original) (quoting In re E.H., 2006 UT 36, ¶¶ 21, 28). ―[We] further held that even when the parties in a custody dispute agree to be bound by an evaluator‘s findings, the district court retains ‗the ultimate authority to preside over the proceedings, to satisfy itself that [the evaluator‘s] recommendations were properly arrived at, and to enter a final order.‘” Id. (second alteration in original) (quoting In re E.H., 2006 UT 36, ¶ 28).

¶56 Following In re E.H.‘s lead, the court of appeals has concluded ―that parties cannot stipulate away the district court‘s statutory responsibility to conduct a best-interest analysis.” Id. ¶ 16. The court of appeals observed that ―Utah law has recognized that in the context of a child‘s well-being, interests in finality rank below the child‘s welfare,” and that ―[t]he same logic applies to judgments predicated on stipulated agreements.” Id. ¶ 17; see also Cox v. Hefley, 2019 UT App 60, ¶ 26, 441 P.3d 769 (reaffirming R.B.).

¶57 There is another reason why, absent express legislative authorization, arbitration awards dealing with child custody and support must be seen as non-binding recommendations to the district court. ―Arbitration agreements are creatures of contract.” Createrra, Inc. v. Sundial, LC, 2013 UT App 141, ¶ 8, 304 P.3d 104. As such, arbitration agreements ―bind only those who bargain for them.” Bybee v. Abdulla, 2008 UT 35, ¶ 8, 189 P.3d 40. And Utah law does not permit a parent to bargain away their child‘s right to have a district court decide the child‘s best interests.

¶58 Under Utah law, for example, ―a parent cannot release his or her minor child‘s prospective claims for negligence.” Rutherford v. Talisker Canyons Fin. Co., 2019 UT 27, ¶ 15, 445 P.3d 474 (reaffirming our decision in Hawkins ex rel. Hawkins v. Peart, 2001 UT 94, 37 P.3d 1062, superseded by statute, UTAH CODE § 78B-4-201 to -203, as stated in Penunuri v. Sundance Partners, Ltd., 2013 UT 22, 301 P.3d 984). Taking cues from ―Utah law provid[ing] various checks on parental authority to ensure a child‘s interests are protected,” and from the absence of any law ―granting parents in Utah a general[,] unilateral right to compromise or release a child‘s existing causes of action without court approval or appointment,” we reasoned that preinjury releases for negligence signed by a parent on behalf of a minor child violate ―public policies favoring protection of minors with respect to contractual obligations.” Hawkins, 2001 UT 94, ¶¶ 11, 12.

¶59 The Superior Court of Pennsylvania has voiced similar concerns about divorcing parents contracting away a child‘s right to have a court review decisions affecting the child‘s best interest. In line with these concerns, that court concluded that a trial court must be able to ensure that an arbitrator‘s custody determinations are in the best interest of the child. Miller v. Miller, 620 A.2d 1161 (Pa. Super. Ct. 1993). The superior court opined,

Parties to a divorce action may bargain between themselves and structure their agreement as best serves their interests. They have no power, however, to bargain away the rights of their children. Their right to bargain for themselves is their own business. They cannot in that process set a standard that will leave their children short. Their bargain may be eminently fair, give all that the children might require and be enforceable because it is fair. When it gives less than required or less than can be given to provide for the best interest of the children, it falls under the jurisdiction of the court‘s wide and necessary powers to provide for that best interest. It is at best advisory to the court and swings on the tides of the necessity that the children be provided. To which the inter se rights of the parties must yield as the occasion requires.

Id. at 1165–66 (quoting Knorr v. Knorr, 588 A.2d 503, 505 (Pa. 1991) (addressing agreements between parents concerning child support)); see also Kovacs, 633 A.2d at 431 (concluding that “the chancellor‘s responsibility to ensure the best interests of the children supersedes that of the parents” and requiring a chancellor to determine that an arbitrator‘s decision is in the best interests of the child before entering it).

¶60 The Supreme Court of New Jersey has also recognized that “[t]he right of parents to the care and custody of their children is not absolute.” Fawzy v. Fawzy, 973 A.2d 347, 358 (N.J. 2009) (alteration in original) (citation omitted). “Indeed,” the court noted, “the state has an obligation, under the parens patriae doctrine, to intervene where it is necessary to prevent harm to a child.” Id. at 358–59 (footnote omitted). Relying on this doctrine, the court concluded that while “the right to arbitrate child custody and parenting time serves an important family value,” the review of an arbitration award is subject to judicial review beyond “the confines of [New Jersey‘s] Arbitration Act” when “there is a claim of adverse impact or harm to the child.” Id. at 360–61. Notably, New Jersey‘s harm standard poses “a significantly higher burden than a best-interests analysis,” requiring a party to allege a level of harm akin to “grant[ing] custody to a parent with serious substance abuse issues or a debilitating mental illness.” Id at 361.

¶61 We note that some states have expressed these concerns and come out differently. The Supreme Court of South Carolina, for instance, has concluded that ―arbitration of children‘s issues is not permitted.” Singh v. Singh, 863 S.E.2d 330, 334 (S.C. 2021). The Singh court explained that ―[l]ongstanding tradition of this state places the responsibility of protecting a child‘s fundamental rights on the court system,” and that ―[p]arents may not attempt to circumvent children‘s rights to the protection of the State by agreeing to binding arbitration with no right of judicial review.”8 Id.see also Kelm, 749 N.E.2d at 301–03 (allowing arbitration of child support issues, but not of custody issues because it ―advances neither the children‘s best interests nor the basic goals underlying arbitration”).

¶62 Harmonizing the statutory schemes and recognizing the strong policies underlying the protection of children and the UUAA leads us to a decision like that reached in Pennsylvania and New Jersey—agreements to arbitrate child support and custody are not contrary to public policy. But any award that flows from these agreements must be in the best interests of the child. A district court retains the authority to ensure that an arbitration award addressing child support or custody satisfies the best-interests standard and may hear a challenge to the arbitration award on that basis.9

  1. A Court Retains Continuing Jurisdiction to Modify an Arbitration Award in a Divorce Case Pursuant to Utah Code Section 30-3-5

¶63 David also argues that the UUAA and Utah divorce law conflict in another area—modification. David contends that under the UUAA, a district court can modify an arbitration award ―only under limited circumstances involving minor procedural, mathematical, or factual errors, and can only do so within ninety

8 The Singh decision was also based on the court‘s reading of its Alternative Dispute Resolution Rules, which, the court concluded, ―implicitly limit[ed] binding arbitration to issues of property and alimony.” 863 S.E.2d at 333.

9 Had David argued that the arbitrator‘s decision on child support was not in the best interests of the children, our conclusion might have triggered a remand. But at no point—either before the district court or on appeal—has David argued that the arbitration award was contrary to the children‘s best interests.

 

days.” ―But in the divorce context, district courts must retain jurisdiction forever to enter modified decrees ‘as is reasonable and necessary‘ or ‘based on a substantial change in circumstances,‘ or when the ‘best interests‘ of the child so require.” (Citations omitted.) (Internal quotation marks omitted.)

¶64 As David points out, the UUAA indicates that a court may modify or correct an arbitration award for only those reasons it sets forth. See UTAH CODE § 78B-11-125. Family code, on the other hand, provides that a district court retains continuing jurisdiction to modify any divorce-related orders. Specifically, Utah Code section 30-3-5 states that a court ―has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child‘s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.” Id. § 30-3-5(3) (2018), amended by and renumbered as UTAH CODE § 30-3-5(5) (2022); see also id. § 78B-12-210(9)(a) (2008), amended by UTAH CODE § 78B-12-210 (2022). Under that same section, a court also ―has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.” Id. § 30-3-5(8)(i)(i) (2018), amended by and renumbered as UTAH CODE § 30-3-5(11)(a) (2022) (stating that a court has continuing jurisdiction to make such changes and new orders ―based on 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”). Under our family code, therefore, a divorce court ―retains continuing jurisdiction over the parties, and power to make equitable redistribution or other modification of the original [divorce] decree as equity might dictate.” Despain, 610 P.2d at 1305; see also Potts v. Potts, 2018 UT App 169, ¶ 13, 436 P.3d 264 (―[D]ivorce courts are well established as courts of equity that retain jurisdiction over the parties and subject matters for the purposes equity may demand.” (citation omitted)).

¶65 We considered the trial court‘s powers to modify a divorce decree in Barraclough v. Barraclough, 111 P.2d 792 (Utah 1941) (per curiam). There, a divorcing couple ―entered into a written stipulation” setting alimony. Id. at 792 (internal quotation marks omitted). The trial court granted the divorce and based the alimony award on the parties‘ stipulation. Id. at 792–93. Five months later, one of the parties ―petitioned the lower court to modify the decree as to alimony.” Id. at 793 (internal quotation marks omitted). The trial court denied the petition, ―determin[ing] that the ‘stipulation‘ . . . constituted ‘a lump sum, complete and final settlement of all alimony . . ., and that such settlement ha[d] become a final judgment as to alimony.” Id.

¶66 We reversed the trial court. We explained,

In a divorce action the trial court should make such provision for alimony as the present circumstances of the parties warrant, and any stipulation of the parties in respect thereto serves only as a recommendation to the court. If the court adopts the suggestion of the parties it does not thereby lose the right to make such modification or change thereafter as may be requested by either party based on some change in circumstances warranting such modification.

Id.see also Jones v. Jones, 139 P.2d 222, 224 (Utah 1943) (concluding that the ability of a divorce court to modify an alimony award based upon the parties‘ stipulation ―can no longer be considered an open question in this State” under Barraclough).

¶67 The court of appeals has relied, in part, on our holding in Barraclough to conclude that even a ―non-modification provision [does] not divest the court of its continuing jurisdiction” to modify a divorce decree. Sill v. Sill, 2007 UT App 173, ¶ 9, 164 P.3d 415. In Sill v. Sill, ―the parties reached a stipulation and property settlement agreement,” under which the parties agreed to monthly alimony and ―the division of real and personal properties.” Id. ¶ 3. ―The trial court approved the Agreement and incorporated its provisions into the parties‘ . . . divorce decree.” Id. ¶ 4. Later, one of the parties sought to modify the decree by ―reduc[ing] the amount of alimony he agreed to pay.” Id. ¶ 5. The trial court dismissed the petition, concluding that ―both parties had waived the right to modify any terms of the Agreement.” Id. ¶¶ 5–6.

¶68 To examine the effect of the parties‘ non-modification provision, the court of appeals first turned to Utah Code section 30­3-5 and noted ―the significance of the legislature‘s inclusion of the adjective ‗continuing‘ to refer to the court‘s jurisdiction.” Id. ¶ 10. The court next turned to supreme court case law, noting that we had repeatedly held that ―parties cannot by contract divest a court of its statutorily granted subject matter jurisdiction to make alimony modifications, even if the parties intend the alimony provisions to be nonmodifiable.” Id. ¶¶ 12–14, 17. ―[C]onsidering section 30-3-5[]‘s continuing jurisdiction language and Utah case law,” the court of appeals determined that the trial court had erred when it dismissed the petition to modify. Id. ¶ 17; see also Cox, 2019 UT App 60, ¶ 30 (concluding under Sill, that a ―third party neutral‘s decisions regarding parent-time” are subject to modification).

¶69 Harmonizing the statutory schemes, we conclude that even when parties agree to arbitrate their divorce-related dispute, they are entitled to seek modification of the resulting award ―as is reasonable and necessary,” UTAH CODE § 30-3-5(3) (2018), or ―based on a substantial material change in circumstances,” id. § 30-3-5(8)(i)(i) (2018).[8]

¶70 To summarize, divorcing parties may agree to submit their alimony, property, child support, and custody-related disputes to arbitration. Judicial review of a resulting arbitration award, moreover, is limited to only those grounds provided in the UUAA, except when the arbitration award covers child support and custody. In those cases, a district court has the independent responsibility to ensure that the award is in the best interests of the child. Once an award is entered in the form of a decree of divorce, the entire decree is subject to modification as Utah Code section 30-3-5 provides.

¶71 We emphasize that the conclusions we reach today follow from our best efforts to harmonize two statutory schemes that do not talk directly to each other. And we recognize that our Legislature is best equipped to break the silence between the statutes. We note in this regard that the Uniform Law Commission has approved a Uniform Family Law Arbitration Act (UFLAA), which has been adopted in a handful of states. See Family Law Arbitration Act, UNIF. L. COMM‘N, https://www.uniformlaws.org/committees/community-home?CommunityKey=ddf1c9b6-65c0-4d55-bfd7-15c2d1e6d4ed (last visited May 13, 2022); see also MONT. CODE ANN. § 40-16-101 to -128; N.D. CENT. CODE § 32.29.4.-01 to -26; HAW. REV. STAT. § 658j-1 to -27; ARIZ. R. FAM. LAW P. 67.2.

¶72 Under the UFLAA, parties may agree to submit any ―family law dispute” to arbitration, UNIF. FAM. L. ARBITRATION ACT § 5, with a few exceptions, id. § 3(b) (clarifying that the UFLAA ―does not authorize an arbitrator” to grant a divorce, terminate parental rights, grant an adoption or guardianship, or determine the status of a child in need of protection). As to the grounds on which a court can modify or vacate an arbitration award prior to confirmation, the UFLAA tracks the UUAA, compare id. §§ 17, 18(a), 19(a)(1)–(7), with UTAH CODE §§ 78B-11-121(1), -124(1)(a)–(f), -125(1), with one important distinction—a court can modify or vacate an award ―determin[ing] a child-related dispute” when the award ―is contrary to the best interests of the child,” UNIF. FAM. L. ARBITRATION ACT § 19(b), (c). A court can also modify an award ―based on a fact occurring after confirmation” in accordance with the arbitration agreement or state law. Id. § 22.

¶73 Other states have enacted their own statutes authorizing family law arbitration. See MICH. COMP. LAWS § 600.5071; N.C. GEN. STAT. § 50-41(a); N.M. STAT. ANN. § 40-4-7.2(A). In states with statutes allowing arbitration of a child-related dispute, an award on the topic is generally subject to modification or vacatur when the award is adverse to the best interests of the child. See GA. CODE. ANN. § 19-9-1.1; TEX. FAM. CODE ANN. § 153.0071(b); MICH. COMP. LAWS § 600.5080(2); N.C. GEN. STAT. § 50-54(a)(6); N.M. STAT. ANN. § 40-4-7.2(T); see also COLO. REV. STAT. § 14-10-128.5 (authorizing ―[a]ny party . . . to move the court” to conduct a ―de novo hearing” to modify an arbitration award ―concerning the parties‘ minor or dependent children”); but see FLA. STAT. § 44.104(14) (prohibiting parties from arbitrating ―any dispute involving child custody, visitation, or child support”). These statutes also generally allow for modification of a confirmed arbitration award in accordance with state rules or statutes. See, e.g., MICH. COMP. LAWS § 600.5080(3); N.C. GEN. STAT. § 50-56.

  1. THE ARBITRATOR DID NOT MANIFESTLY
    DISREGARD THE LAW

¶74 David next argues that ―[a]t a minimum, the award should be vacated because the arbitrator exceeded his authority by manifestly disregarding Utah law.” David claims that the arbitrator manifestly disregarded the law when he imputed Jill‘s income and included Jill‘s tuition costs in the alimony award.

¶75 Our case law has recognized that a court may vacate an arbitration award ―if [the arbitrator‘s] decision demonstrates a manifest disregard of the law.” Westgate Resorts, Ltd. v. Adel, 2016 UT 24, ¶ 10, 378 P.3d 93. But we have since called Westgate’s conclusion into question. See Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, 506 P.3d 536.

¶76 In Ahhmigo, we explained that the manifest disregard standard had its genesis in United States Supreme Court dicta. Id. ¶ 26 (discussing Wilko v. Swan, 346 U.S. 427, 436–37 (1953)). In later cases, SCOTUS declined to comment on the standard‘s survival, see Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 585–87 (2008); Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3 (2010), ―creat[ing] a split among jurisdictions as to whether the manifest disregard standard remains a viable ground for vacatur” under the Federal Arbitration Act, Ahhmigo, 2022 UT 4, ¶ 28 (citing cases).

¶77 Ahhmigo also addressed the standard‘s precarious position in our case law. Id. ¶¶ 31–36. We observed that ―we have never applied the standard to vacate an arbitration award.” Id. ¶ 37. We also explained that ―we have been less than clear when we have talked about the link between the manifest disregard standard and the UUAA,” id. ¶ 38—that is, ―we [could not] say whether the manifest disregard standard operates as only a gloss on section 78B-11­124(1)(d) of the UUAA, or whether it is a standalone ground on which a court may vacate an arbitration award,” id. ¶ 40. Looking to ―each of the grounds for vacatur” under the UUAA, we ―wonder[ed] if perhaps manifest disregard of the law is better thought of as a way of sussing out whether the arbitrator exceeded her authority in a manner that deprived the parties of the benefit of their bargain.” Id. ¶¶ 41, 43. ―At the very least,” we ―view[ed] with suspicion a standard that permits a party to ask a district court to vacate an award based upon what is, in essence, an argument that the arbitrator misapplied the law dressed up as an argument that the arbitrator disregarded the law.” Id. ¶ 45.

¶78 Ahhmigo notwithstanding, neither party has asked us to abandon the manifest disregard standard. And so we proceed to apply the standard under our case law as it currently sits.

¶79 ―‗[M]anifest disregard‘ is an extremely deferential standard.” Westgate Resorts, 2016 UT 24, ¶ 11. To meet this standard, a party must prove three elements:

First, the [arbitrator]‘s decision must actually be in error. Second, the error ―must have been obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” Third, the [arbitrator] must have ―appreciate[d] the existence of a clearly governing legal principle but decide[d] to ignore or pay no attention to it.”

Id. (third and fourth alterations in original) (citation omitted).

¶80 David first argues that the arbitrator manifestly disregarded the law when he calculated Jill‘s imputed income. David claims that the arbitrator failed to ―consider the significant money that [Jill] will be able to earn from investing her property division.” And he contends that the arbitrator based Jill‘s income ―not on the statutory factors, but on his own judgment that [Jill] should be allowed to work in the field of her choice . . . and given time to complete her degree.”

¶81 Utah Code specifies that imputation of income for alimony or child support purposes must ―be based upon employment potential and probable earnings.” UTAH CODE § 78B-12-203(8)(b). ―In evaluating a spouse‘s ’employment potential and probable earnings,‘ courts are instructed to consider, among other factors, available employment opportunities, the spouse‘s health and relevant work history, and ‘prevailing earnings and job availability for persons of similar backgrounds in the community.‘” Bond v. Bond, 2018 UT App 38, ¶ 7, 420 P.3d 53 (citing UTAH CODE § 78B-12-203(8)(b)(i)–(x)).

¶82 David cannot successfully demonstrate that the arbitrator manifestly disregarded the law when he calculated Jill‘s income because he does not show that the arbitrator‘s decision was ―actually . . . in error,” let alone that any error in the arbitrator‘s decision was ―obvious and capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator.” Westgate, 2016 UT 24, ¶ 11 (citation omitted).

¶83 We first note, as the district court did, that Utah law does not require the arbitrator to impute Jill‘s income according to her highest historical salary or possible property investments. It requires, instead, that the arbitrator consider an array of factors and impute Jill‘s income based on her ―employment potential and probable earnings.” See UTAH CODE § 78B-11-203(8)(b). And contrary to David‘s assertion, the arbitrator did not ignore this framework. As the district court found, the arbitrator ―effectively considered and applied the pertinent statutory factors.” Specifically, the arbitrator considered Jill‘s employment history in the financial and pharmaceutical sales sectors and a report submitted by David‘s vocational expert listing various jobs available to Jill based on her skillset and prior work experience. The arbitrator also spoke with Jill, who explained that while she was currently working as an aide, she was in the process of completing a degree in elementary education and intended to secure a full-time teaching position once her degree was complete. Considering all of these factors, the arbitrator imputed Jill‘s income. The arbitrator thus did not manifestly disregard the law.

¶84 David also argues that the arbitrator manifestly disregarded the law when he ―provid[ed] a line-item in [Jill‘s] alimony budget for her to obtain the education necessary to work in [the teaching] profession.” He contends that Utah Code instructs courts to calculate alimony according to a spouse‘s “needs” and “the standard of living existing at the time of separation.” According to David, Jill‘s tuition costs were “neither part of the parties‘ standard of living during the marriage nor a ‘need.‘”

¶85 When determining alimony, a district court must consider a series of factors, including “the financial condition and needs of the recipient spouse.” UTAH CODE § 30-3-5(8)(a)(i)–(vii) (2018), amended as and renumbered by UTAH CODE § 30-3-5(10)(a)(i)–(vii) (2022). In accordance with those factors, “[a]s a general rule, the court should look to the standard of living, existing at the time of separation.” Id. § 30-3-5(8)(e) (2018), amended as and renumbered by UTAH CODE § 30-3­5(10)(e) (2022). “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.” Id.

¶86 We again find no “obvious” error in the arbitrator‘s decision. The arbitrator determined that Jill‘s tuition costs constituted a component of Jill‘s “financial condition” and spending “needs,” and factored those costs into the standard of living that existed at the time of arbitration. This is expressly sanctioned by Utah law. See id. § 30-3-5(8)(a)(ii), (e).

¶87 Ultimately, while David may disagree with the arbitrator, that does not equate to manifest disregard. After all, manifest disagreement and manifest disregard are different. See Pac. Dev., L.C. v. Orton2001 UT 36, ¶ 15, 23 P.3d 1035 (refusing to vacate an arbitration award for manifest disregard of the law because “[the appellant]‘s manifest disregard argument simply amount[ed] to a ‘manifest disagreement‘ with the arbitrator‘s findings and final award” (citation omitted)).

CONCLUSION

¶88 David asked his then-wife, Jill, to submit to arbitration the parties‘ disputes regarding alimony, property division, and child support. Jill agreed. David now asks us to invalidate the award under section 78B-11-107 of the UUAA. He argues that the plain language and policies of our state‘s arbitration and divorce laws conflict such that the parties‘ arbitration agreement is unenforceable.

¶89 But having participated in arbitration without objection, David lost the chance to rely on section 78B-11-107 to contest the arbitration award in his divorce case. We also reject David‘s argument that Utah law prevents parties from submitting at least some aspects of their divorce action to arbitration. Judicial review of arbitration awards dealing with divorce-related issues, however, varies depending on the issue and its underlying policies. Parties may arbitrate questions concerning alimony and property division and agree to the limited judicial review the UUAA contemplates. The strong policies underlying statutory provisions ensuring the protection of children, on the other hand, dictate that a court maintain the ability to consider whether an arbitration award addressing child support or custody is in the best interests of the child.

¶90 Concerning modification, a court retains continuing jurisdiction to modify orders relating to property distribution or children ―as is reasonable and necessary,” UTAH CODE § 30-3-5(3) (2018), amended by and renumbered as UTAH CODE § 30-3-5(5) (2022), and orders relating to alimony ―based on a substantial material change in circumstances,” id. § 30-3-5(8)(i)(i) (2018), amended by and renumbered as UTAH CODE § 30-3-5(11)(a) (2022).

¶91 David alternatively asks us to invalidate the arbitration award for manifest disregard of the law. Even assuming that standard remains viable, it has not been met. We affirm the district court.

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

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How long do you pay alimony in Utah?

The law governing the duration of alimony is pretty simple and straightforward: 

See Utah Code § 30-3-5, subsections (1)(c) and (11)(e): 

(1) As used in this section: 

***** 

(c) “Length of the marriage” means, for purposes of alimony, the number of years from the day on which the parties are legally married to the day on which the petition for divorce is filed with the court. 

***** 

11(e) 

(i) Except as provided in Subsection (11)(e)(iii), the court may not order alimony for a period of time longer than the length of the marriage. 

(ii) If a party is ordered to pay temporary alimony during the pendency of the divorce action, the period of time that the party pays temporary alimony shall be counted towards the period of time for which the party is ordered to pay alimony. 

(iii) At any time before the termination of alimony, the court may find extenuating circumstances or good cause that justify the payment of alimony for a longer period of time than the length of the marriage. 

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

https://www.quora.com/How-long-do-you-pay-alimony-in-NC/answer/Eric-Johnson-311  

 

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