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2023 UT App 137 – Lobendahn v. Lobendahn – petition to modify custody

2023 UT App 137  – Lobendahn v. Lobendahn

 

THE UTAH COURT OF APPEALS

MARCUS JAMES LOBENDAHN,

Appellant and Cross-appellee,

v.

LEEYEN MOEVAI LOBENDAHN,

Appellee and Cross-appellant.

Opinion

No. 20210278-CA

Filed November 16, 2023

Fourth District Court, Provo Department

The Honorable Thomas Low

No. 164400262

Luke A. Shaw and Jill L. Coil,

Attorneys for Appellant

Julie J. Nelson, Daniel Ybarra, and Alexandra

Mareschal, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY

concurred.

CHRISTIANSEN FORSTER, Judge:

 

¶1        Marcus James Lobendahn (Father) appeals the district court’s denial of his petition to modify the parties’ divorce decree. LeeYen Moevai Lobendahn (Mother)[1] also appeals the court’s order denying her request for attorney fees incurred in responding to Father’s petition to modify. We affirm the district court’s order in all respects.

BACKGROUND

¶2        The parties were married in 2008 in Hawaii. Following their marriage, the parties moved to Utah and had two children— a daughter and a son (Son). In May 2015, Father moved to New Jersey for employment purposes, and Mother and the children followed a little while later. Shortly after Mother arrived in New Jersey, Father asked Mother for a divorce and filed for a divorce in Utah. Mother suggested that the children live with Father in the marital apartment while she rented a separate place and cared for the children while Father was at work. Father declined the offer and advised Mother that she and the children should move back to Utah, which they did. The parties’ divorce was finalized through a stipulated decree in Utah in early 2016 while Father still lived in New Jersey. The decree awarded the parties joint legal and physical custody of the children and Father parent-time under section 30-3-37 of the Utah Code with additional time during certain breaks.

¶3        Father moved back to Utah in the fall of 2016, and Mother allowed him parent-time every other weekend, similar to the schedule provided in section 30-3-35 of the Utah Code. In 2017, Father filed a petition to modify based on his relocation, and the parties resolved the petition through a stipulation modifying the decree of divorce. Based upon their agreement, Father would exercise parent-time as provided in section 30-3-35 until he moved within fifteen miles of Mother’s residence in Utah County, at which time his parent-time would increase pursuant to the schedule described in section 30-3-35.1, with some modifications. Father did not move within fifteen miles of Mother and the children at that time but remarried and moved to his wife’s residence in Salt Lake County. Even so, Mother allowed Father to exercise increased parent-time.

¶4      Mother sent a letter to Father in March 2018, notifying him of her intent to remarry and relocate with the children to Washington state. A few weeks later, Father notified Mother that he had signed a lease for an apartment in an area within fifteen miles of her residence in Utah County. Father continued to reside with his wife in Salt Lake County but would stay at the apartment when exercising parent-time with the children. Thereafter, Father filed a motion to restrain Mother from relocating, which the court denied, concluding that Mother’s move to Washington was in the best interest of the children. Mother remarried and moved to Washington in the summer of 2018.

¶5        While the parties were litigating Mother’s relocation, Father filed a second petition to modify. Father argued that he should be awarded primary physical custody of the children, who should live with him in Utah, and that Mother should be awarded parent-time under section 30-3-37 of the Utah Code. Father’s petition alleged that Mother had not been entirely truthful in describing the reasons for her relocation, that the children struggled in school upon moving to Washington, that Mother had been evasive about Father’s proposal to relocate to Washington to live close to the children, that Mother interfered with his parent-time since she had relocated, that Mother had been uncooperative in planning the children’s travel, and that Mother interfered with Father’s participation in Son’s baptism. Father also requested that a custody evaluator be appointed to make recommendations about what custodial arrangement would be in the best interest of the children, and the court granted that request.

¶6        The court appointed a custody evaluator (Evaluator), who began her evaluation in July and completed her work in November 2019. Evaluator interviewed the parties, their respective spouses, and Son, and she observed the children with both parents in their homes. At the time Evaluator conducted her evaluation, the children had lived in Washington with Mother for approximately one year. Evaluator delivered her recommendations to the parties at a settlement conference in April 2020, and completed her report five months later. Evaluator recommended that the parties continue to share joint physical and legal custody but that the children should relocate back to Utah. Evaluator recommended that if Mother did not return with the children, Father should have primary physical custody with statutory visitation for Mother. Later, at the trial on Father’s petition to modify, Evaluator advised that in her opinion—while both parents shared a close, positive relationship with the children and Mother had been the children’s primary caretaker for their entire lives—Mother did not truly support the children’s relationship with Father and the broad benefit of having access to Father outweighed the potential risk that a second relocation adjustment would be hard for the children. And she acknowledged that her relocation recommendation was based on her understanding that if the court ordered the children to relocate back to Utah, Mother would move back to Utah as well. Evaluator also conceded that by the time of trial, the children had lived in Washington for two-and-a-half years and that the delay between her evaluation and the trial could be significant. She agreed that “some of the facts that [she] relied on to make [her] determinations are now out of date.” She agreed that the children had probably changed and matured emotionally, psychologically, socially, and physically and that she had not had any contact with the children in more than a year and a half.

¶7        The court held a trial in March 2021 on Father’s petition to modify. Father’s petition was based on his contention that Mother’s move to Washington was selfishly motivated and harmed the children and that Mother had failed to facilitate Father’s role in the children’s lives and had excluded him from decision-making. Father testified about particular instances that, in his view, demonstrated Mother’s inability to co-parent and unwillingness to facilitate his role in the children’s lives. These included:

·         Son’s difficulty in school after the relocation and resultant disputes between the parties about whether to move him to a different classroom or have him tested for autism;

·        Son’s baptism in July 2019 and Father’s role in that event;

·        Mother’s apparent unwillingness to commit to living in Washington for the long term when Father was contemplating relocating there to be closer to the children;

·         Father’s participation in obtaining passports for the children so they could visit Mother’s ill father in Tahiti and Father’s contention that he did not intend to use these circumstances to coerce Mother into moving back to Utah; and

·         Mother’s alleged interference with Father’s visitation in February 2019.

·         ¶8        Mother testified to her version of the events and issues raised in Father’s testimony. Specifically, Mother testified:

·         That her decision to move from Utah was not to get herself and the children away from Father;

·        That she addressed Son’s difficulties in school following the relocation and how she wanted to have him tested for autism as recommended by his teacher but Father did not want the school to do any testing;

·         That Son’s school difficulties had mostly been resolved by the time of trial and that his recent less-than-stellar report card had more to do with remote learning than continued transition issues;

·         That given Son’s his age and stage of development, she believed it was appropriate to let him choose who would baptize him and where the baptism would take place and that Mother never interfered with Father’s wish to perform the baptism;

·         That Father caused a big scene before the baptism ceremony, which Son overheard, and Father demanded that he perform both the baptism and the confirmation;

·        That when Father considered moving to Washington and asked Mother to commit to remaining in the area, Mother did not think it was wise to promise Father that she would live in Washington forever because of the constant litigation she had already experienced over custody;

·         That the conflict that arose when Mother tried to obtain passports for the children in 2018 to visit her father in Tahiti after he had been diagnosed with cancer required her to file an order to show cause in December 2019 to compel Father to complete an affidavit and sign the passport applications, which he eventually did, but the children’s passports did not arrive in time for them to travel to Tahiti before Mother’s father passed away; and

·         That Father does a good job keeping up with and supporting the children’s interests.

¶9        At the conclusion of the trial, Mother asked the court to award her attorney fees.

¶10      In its written ruling issued after the trial, the court addressed Mother’s alleged failure to facilitate Father’s role in the children’s lives. Regarding Son’s baptism, the court found that Father had adduced no evidence demonstrating that Mother had broached the subject of baptism with Son in an attempt to create contention, or that Son had suffered any psychological harm from Mother’s actions. The court found, however, that the evidence admitted “demonstrates poor judgment on Father’s part,” that the only evidence of conflict surrounding the baptism was created by Father himself, and that the “only harm [Son] suffered was having to overhear Father yelling at [Son’s] bishop . . . inside the closed bishop’s office.”

¶11 Regarding the circumstances surrounding obtaining the children’s passports, the court was extremely critical of Father’s actions. Among other things, it found that Father’s actions were “senselessly cruel” and “among the most reprobate [the] court [had] encountered in a domestic relations case.” It faulted Father for using “the imminent death of a grandparent as a bargaining chip” and found that his behavior “demonstrates that his control over the children’s welfare must be reduced.”

¶12 The court also addressed Mother’s move to Washington, finding that the move did not cause the children harm or interfere with the parties’ ability to co-parent. Specifically, the court determined that both parents had chosen to live in places that did not prioritize proximity to the other parent—Mother moving to Washington to remarry and attend school after living in Utah for more than three years and Father remaining in New Jersey while Mother and the children returned to Utah and then moving to Salt Lake County with his wife rather than moving to a place within fifteen miles of the children (until Mother indicated she would be relocating). Moreover, the court noted that although Father is “untethered,” in that he is employed for a company that allows him to work from home and he could live and work anywhere, he is unwilling to move unless Mother commits to remain in Washington, which she had not done because she eventually wants to work as a pharmacist and may need to move for that career. The court found that Father’s decision to remain in Utah despite his ability to move reflects his choice not to live close to the children.

¶13      As far as the children’s best interest in staying in their current placement, the court found that Mother’s spouse has an extensive family network with whom the children have grown close and share a Pacific Islander heritage. Besides a strong family connection, the children also have close friends in the area, which the court found to be good for the children. And due in part to the length of time spent in Washington, the court found that “[o]verall, the children’s social network is stronger in Washington” than in Utah. The court also determined that no evidence supported Father’s assertion that the move to Washington caused Son to have behavioral issues at school. If anything, Father’s refusal to allow Son to be tested for autism or to allow him to change classrooms when he started having trouble has potentially caused continuing suffering for Son and created stalemates between the parents that Father chose to address in the courts. Father’s proclivity for litigation, which he can afford and which the court found bordered on harassment, caused harm to the children, created unpredictability, and demonstrated less-responsive parenting.

¶14      The court found that both Mother and Father have capacity to parent and to co-parent and have excellent parenting skills. But the court determined that Mother “exhibits greater respect of Father’s role than Father does of Mother’s.” Specifically, the court found that “[w]hen the children ask Mother a question on which Father should be consulted, she tells them ‘I’ll talk to your dad about that and we’ll decide together.’” The court recognized that the children’s bond with Father is very strong, but it agreed with Evaluator that “the children are more bonded with Mother in light of being under her primary care for their entire lifetimes.”

¶15      The court analyzed the custody factors found in section 30­3-10(2) of the Utah Code and made the following determinations:

·        Both parents demonstrate an appropriate understanding of, and responsiveness to, the developmental needs of the children, but Mother’s openness to the advice and assistance of professionals exceeds Father’s.

·        Both parents have an excellent capacity to parent and co-parent and endorse the other’s role in the presence of the children. Except for Mother’s use of inappropriate terms in some of her written communication (which the court believed was on the mend), “both parents appropriately communicate with the other, encourage the sharing of love and affection, and exhibit a willingness to allow frequent and continuous contact with the other parent.” However, Mother exhibits a greater respect for Father’s role in the children’s lives than Father does for Mother’s.

·         Father has relinquished both custody and parent-time in the past.

·         Both parents desire custody and time with the children. Mother has been the primary caretaker and Father has made it a priority to maintain good contact with the children. But “Mother’s commitment to the care and custody of the children exceeds Father’s.”

·         Both parents have always cared for the children financially and are financially responsible, but “Mother has expressed more constant and less evasive financial responsibility than Father.”

·         The children enjoy a strong social and familial network in Washington with their stepfather and his side of the family and have close friends there. The children also enjoy the close proximity of their stepmother and her family and their maternal aunt and grandmother in Utah. Overall, the children’s social network is stronger in Washington.

·         The children are more bonded to Mother because she has always been their primary caretaker.

·        The children have both benefitted and suffered from the sharing of parental responsibilities. Father is very involved and committed to his role. “But Father’s veto-power over decisions regarding the children’s health, education, and welfare” has prevented Son from being tested for autism, prevented Father from honoring Son’s preferences at his baptism, and “prevented the children from traveling to see their dying grandfather in Tahiti.”

·        The parents are generally able to cooperate with each other and make decisions jointly but struggle to reach agreement on significant decisions in the children’s best interest and these frequent stalemates harm the children. Specifically, the court noted that the parents could not communicate effectively to make Son’s baptism conflict-free and they could not agree on how to address Son’s difficulties in school after the relocation or obtain passports for the children. “Given her less affluent status, Mother usually surrenders in the face of disagreement because she cannot afford to take the matter further. Father, however, has substantial funds at his disposal, and has exhibited the ability and willingness to press his concerns in the courts.”

·         Both parents ensure that the children are protected from conflict, except for Father’s refusal to complete the passport paperwork to allow the children to travel to Tahiti, which harmed the children, and allowing Son to overhear the conflict over his baptism.

¶16      After weighing the evidence and the statutory factors, the court concluded that granting Father’s petition and relocating the children back to Utah would not be in their best interest. The court found that the children are doing well in their current circumstances and that they are primarily bonded with Mother as their primary caretaker. “Father has presented no evidence that removing primary custody from Mother would be in the children’s best interests. . . . [Rather,] doing so would be harmful to the children.” The court determined that “the children are happy in Washington, that the parties have successfully mitigated the effects of distance on parent-time, that Father continues to enjoy a healthy relationship and strong bond with the children, and that the current custody arrangement is working well.” The court noted that the trial evidence “establish[ed] that [Father] and Mother have been extraordinarily successful in managing the geographical distance between them,” “that the children do not grasp the gravity of the distance,” and that “all evidence indicates that the children are happy, thriving, and well-adjusted in the current circumstances.” The court found that none of the statutory custody factors favored a change in custody.

¶17 Accordingly, the court denied Father’s petition to modify custody and his request that he be awarded primary custody if Mother did not relocate to Utah. The court ordered joint legal custody to continue but awarded Mother final decision-making authority as to the children’s health, education, and welfare. It also ordered that Mother “should be designated as the parent with the sole legal right to determine the residence of the children.” The court denied Mother’s request for an award of attorney fees because (1) she presented no evidence of her need for such an award and (2) even though Mother had ultimately prevailed, Father’s petition was not frivolous because it had been supported by Evaluator’s recommendation for a change in custody. But the court then explained that it chose to disregard the custody evaluation because it was “outdated and fail[ed] to adequately address the evidence presented at trial.”

ISSUES AND STANDARDS OF REVIEW

¶18 Father now appeals the court’s denial of his petition to modify, including its decision to reject Evaluator’s recommendation. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 26, 505 P.3d 1136 (quotation simplified). We will not disturb a district court’s findings of fact unless they are clearly erroneous. See Robertson v. Robertson, 2016 UT App 55, ¶ 5, 370 P.3d 569. And “[a]lthough a district court is not bound to accept a custody evaluator’s recommendation, the court is expected to articulate some reason for rejecting that recommendation.” R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137.

¶19 Mother cross-appeals and challenges the court’s denial of her request for attorney fees. We review a district court’s attorney fee determination for an abuse of discretion. Jensen v. Jensen, 2009 UT App 1, ¶ 7, 203 P.3d 1020.

ANALYSIS

¶20 Father argues the district court erred in denying his petition to modify. Father’s challenge comprises two parts. First, Father takes issue with the court’s weighing of the evidence and its associated factual findings and conclusions. Second, Father challenges the court’s decision to reject Evaluator’s recommendation. We address each of Father’s arguments in turn. Lastly, we address Mother’s cross-appeal concerning the denial of her request for attorney fees.

I. The Evidence Supports the District Court’s Determination to Deny the Petition to Modify

¶21      Father’s first argument on appeal is that the district court ignored the evidence presented at trial that supported Father’s position that it was in the best interest of the children to move them back to Utah and that he should be awarded primary custody if Mother did not relocate with them. Father also argues that the court viewed the evidence presented from a biased perspective. In the context of determining custody, the district court is to analyze the best interest of the children through the custody factors outlined in section 30-3-10(2) of the Utah Code. Generally, it is within the court’s discretion to consider each custody factor and accord each factor the appropriate weight. See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

¶22      While the district court is accorded discretion in weighing the statutory custody factors, “it must be guided at all times by the best interests of the child,” see Tucker, 910 P.2d at 1214, and it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision,” see id. at 1215. “Whenever custody is contested, the district court must provide the necessary supporting factual findings that link the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933.

¶23      Moreover, the factual findings of the district court “will not be disturbed unless they are clearly erroneous” by being “in conflict with the clear weight of the evidence.” Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (quotation simplified). And “the existence of conflicting evidence is not sufficient to set aside a [district] court’s finding.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53 (quotation simplified). Rather, “to successfully challenge a [district] court’s factual findings on appeal, the appellant must overcome the healthy dose of deference owed to factual findings by identifying and dealing with the supportive evidence and demonstrating the legal problem in that evidence, generally through marshaling the evidence.” Taft v. Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890 (quotation simplified).[2] Thus, a party challenging the sufficiency of the evidence to support a custody decision will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal. See State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645. In addition, a district 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 v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018).

¶24      On appeal, Father asserts that the district court ignored evidence that was presented to Evaluator and to the court at trial. But on appeal, Father has not wrestled with the evidence that supports the court’s conclusion that most of the custody factors favor Mother, and he has made no attempt to marshal the evidence that supports the court’s factual findings. Father “clearly views the evidence as compelling a different outcome, but it is not within our purview to engage in a reweighing of the evidence, and [Father] has not demonstrated that the evidence underlying the [district] court’s findings is insufficient.” See id. ¶ 9 (quotation simplified). We address Father’s specific challenges to the court’s conclusions below.

A.        Father’s relinquishment of parent-time with the children by voluntarily choosing not to live close to them

¶25      Father complains that the district court misunderstood and ignored the evidence when it determined that Father had made decisions that minimized his parent-time. But Father has not addressed the evidence the court chose to credit nor demonstrated how that evidence was insufficient for the court to conclude that Father had not prioritized living close to the children to maximize his parent-time. That is, the court found the following evidence convincing:

·         While the family lived in New Jersey in 2015, and after Father announced he wanted a divorce, Mother offered to move out of their apartment so the children could remain with Father. Father declined this offer and advised Mother to return to Utah with the children.

·         Father remained in New Jersey for over a year before moving back to Utah.

·         After the parties mediated a settlement in August 2017 wherein Father could exercise more parent-time if he moved within fifteen miles of Mother’s residence, he did not do so. Instead, Father remarried in 2018 and moved to his wife’s residence in Salt Lake County (Mother’s residence was in Utah County).

·         Father rented an apartment within fifteen miles of Mother’s residence in Utah County only after she had announced her intention to relocate to Washington.

·        Father is employed by a company that allows him to work from home and his wife does not work outside the home, so Father’s employment does not necessarily tie him to Utah. Father has even shopped for houses in Washington but requires a commitment from Mother that she will remain there long term before he will move.

·        Evaluator opined that despite Father’s valid professional and financial motives for staying in New Jersey and then in Utah, Father failed to capitalize on the opportunity for more frequent parent-time by living close to the children.

¶26 Father appears to fault the court for not considering dispositive his testimony that he sought and exercised more than the minimum parent-time once he returned to Utah in 2016. Father asserts that this evidence disproves the court’s determination that Father had not prioritized his time with the children. But “Father [doing] what was within his rights . . . to exercise the expanded parent-time” was not persuasive to the court given the evidence listed above. And Father has not challenged any of the factual findings that support the court’s conclusion that he did not make choices for his living situation to be closer to the children. Father simply challenges how the court considered the evidence that supports his position.

¶27 The existence of conflicting evidence in the record is not sufficient to set aside a district court’s findings. See Nebeker v. Orton, 2019 UT App 23, ¶ 16, 438 P.3d 1053. “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.” Kimball, 2009 UT App 233, ¶ 20 n.5 (quotation simplified). The district court’s “mission” is “to consider and weigh all the conflicting evidence and find the facts.” Id. Thus, even though “contrary facts might have been found from all the evidence,” this court defers to the district court’s “pre-eminent role as fact-finder,” and we “take the findings of fact as our starting point, unless particular findings have been shown . . . to lack legally adequate evidentiary support.” Id. Because Father has not directly challenged any of the court’s subsidiary findings supporting its determination that Father made decisions that minimized, rather than maximized, his parent-time, we will not reweigh the evidence.

B.        The circumstances surrounding Son’s baptism

¶28      Father complains that the issue surrounding Son’s baptism “is an issue of legal custody . . . [and] should [have been] discussed between the parents before decisions [were] made.” Father asserts that the district court committed legal error when it failed to rule that a decision about who will perform a child’s baptism is a major parenting decision that should not be left up to a child. Father also takes issue with the court crediting Mother’s testimony about the dispute that occurred before the baptism— and not Father’s testimony that he did not agree with the accounts that he was yelling or losing his cool—to determine that the circumstances of the event demonstrated poor judgment on Father’s part and that Father’s actions caused Son harm.

¶29      On the facts of this case, we cannot fault the district court for its determination that who performs the various parts of a child’s religious ceremonies within the shared religious tradition of both parents (as opposed to whether the ceremonies will be performed at all) is not a major parenting decision requiring the agreement of both parents. Father cites no authority for the proposition that the decision about who performs a religious ceremony is equivalent to decisions concerning a child’s medical care, school attendance, or overall religious practice. Nor has Father challenged any of the factual findings that support the court’s conclusion that Father had failed to demonstrate that Mother’s decision to allow Son to have “input regarding his own baptism was an unhealthy or unwise parenting decision.” Thus, Father cannot show the court erred in considering this decision to be something other than a major parenting decision. And while we understand that Father is unhappy with the court’s conclusion that Father’s behavior before Son’s baptism showed poor judgment on his part rather than ineffective co-parenting on Mother’s part, the evidence in the record supports the court’s conclusion that Mother’s parenting regarding the baptism was not problematic, and we will not reweigh the evidence.

C.        The circumstances surrounding having Son tested for autism

¶30 Father next takes issue with the court’s findings about whether the children have benefitted from the parties’ sharing of parenting responsibilities and about the abilities “of the parents to give first priority to the welfare of the [children] and reach shared decisions in the [children’s] best interest.” See Utah Code § 30-3-10.2(2)(b). Among other things, in determining that Mother should be designated the final decision-maker as to the children’s health, education, and welfare, the court found that Father exhibited an “injudicious use of his veto power over decisions relating to the children’s health” and had “evidenced [a] tendency to act contrary to the children’s interests and to use those interests as leverage against Mother.” But Father’s complaint that the evidence demonstrated that he suggested they not rush into testing Son for autism rather than that he objected to the testing does not diminish the court’s determination that “Father’s veto-power over decisions regarding the children’s health, education, and welfare [] prevented [Son] from being tested for autism at a time when educational professionals believed the test would be helpful to address his needs.” Thus, we agree with Mother that “[e]ven if the court should have used the word ‘delayed’ rather than ‘prevented’” in its finding, Father has not shown how the court’s decision to award Mother final decision-making authority was an abuse of discretion or legal error.

D.        The circumstances surrounding obtaining the children’s passports

¶31 Father next challenges the court’s view of the circumstances surrounding Mother’s attempts to obtain passports for the children in time to visit her cancer-stricken father in Tahiti in 2019. Father argues that the court’s pointed and direct comments about this incident are overly aggressive and suggest that this evidence was the “ultimate basis for [the court’s] ultimate conclusion.” Father asserts that he did not interfere with the passport applications or attempt to condition his facilitation of the passports upon Mother’s promise to return to Utah and suggests that Mother was at fault for not obtaining the passports in time. But, once again, on appeal, Father selectively highlights the evidence he submitted at trial, asserts that the evidence supports a different outcome, and criticizes the court for not crediting his testimony rather than Mother’s. It is not this court’s “purview to engage in a reweighing of the evidence.” Shuman v. Shuman, 2017 UT App 192, ¶ 9, 406 P.3d 258 (quotation simplified), cert. denied, 412 P.3d 1257 (Utah 2018). In fact, when “a foundation for the court’s decision exists in the evidence, [we] may not engage in a reweighing of the evidence.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. On appeal, this court will look to whether the district court’s decision is supported by the evidence and in cases where the appellant has “merely point[ed] to evidence that might have supported findings more favorable to them” rather than “identify[ing] flaws in the evidence relied on by the [district] court that rendered” the court’s findings clearly erroneous, we will not reverse. Shuman, 2017 UT App 192, ¶ 8 (quotation simplified). Because the court’s decision is supported by the record and Father has identified no fatal flaws in the evidence upon which the court relied, we will not reweigh the evidence.

E.         The reasons and representations given for Mother’s relocation to Washington

¶32 Father next challenges the court’s view of Mother’s relocation. Father appears to attack Mother’s honesty and credibility by asserting that the reasons she gave for her move to Washington were not true. But Father did not appeal the court’s order approving Mother’s relocation, and by not directly challenging the district court’s findings about Mother’s move, Father has failed to persuade us that the court’s determination that “Mother’s move to Washington was not contrary to the children’s interests” was an abuse of discretion or legal error since it “is undisputed that the children are thriving and happy there”.

F.         The district court’s custody factor findings

¶33      Father challenges the court’s determination that evaluation of the statutory custody factors favored denying his petition to modify and awarding Mother more decision-making authority. Specifically, Father argues that the court’s analysis of the custody factors is not supported by the evidence with regard to (1) the parents’ commitment to the care and custody of the children, (2) not disrupting a custody arrangement where the children are happy and well-adjusted in their current circumstances, (3) the respect each parent affords the other parent’s role, (4) the parents’ ability to make decisions jointly, and (5) whether it was better to remain in Washington versus returning to Utah.

¶34      But Father does not tie his argument to a particular custody factor or explain how the court’s findings in these areas are critically important to the overall custody determination. Nor does Father explain how the court’s findings on these factors are against the clear weight of the evidence. “Generally, it is within the [district] court’s discretion to determine . . . where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “While the district court is accorded discretion in weighing these factors, it must be guided at all times by the best interests of the child.” Hinds v. Hinds-Holm, 2022 UT App 13, ¶ 30, 505 P.3d 1136 (quotation simplified).

¶35      Father’s argument that the court disregarded the evidence that supports his preferred evaluation of the statutory custody factors is not persuasive. It is not this court’s role to reweigh the evidence to see if we would reach a different conclusion from that of the district court. Father has not demonstrated that the court’s evaluation of the custody factors lacks evidentiary support or that any finding regarding each factor is against the clear weight of the evidence. Given this, we cannot say that the court abused its discretion or committed legal error in concluding that “none of the factors favor a change in custody” or that “[t]he critically important factors—bonding and continuity of placement— strongly favor leaving primary custody with Mother.”

¶36 In sum, Father has not directly challenged any of the court’s specific findings supporting the determinations listed above. Indeed, he simply highlights evidence he claims the district court ignored. Without a direct challenge to any specific finding, we consider the district court’s findings as established and will not reweigh the evidence.

II. The District Court Did Not Abuse Its Discretion When It
Rejected Evaluator’s Recommendation

¶37      Father contends that the district court erred in rejecting the recommendations and testimony of Evaluator. “Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (quotation simplified). “This is because . . . the fact-finder is in the best position to judge the credibility of witnesses and is free to disbelieve their testimony . . . even if that testimony comes from an expert witness.” Woodward v. Lafranca, 2016 UT App 141, ¶ 13, 381 P.3d 1125 (quotation simplified), cert. denied, 384 P.3d 570 (Utah 2016). These principles apply to a court’s assessment of the opinions offered by a custody evaluator. Indeed, a “district court is not bound to accept a custody evaluator’s recommendation,” but if a court chooses to reject the evaluator’s opinion, it “is expected to articulate some reason for” doing so. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. In this case, while the court could have perhaps more fully explained its reasons for rejecting Evaluator’s recommendations, in our view the court had sufficient reasons for doing so and adequately explained itself.

¶38      Father first contends that the district court erroneously rejected Evaluator’s recommendations because the court had unreasonable expectations of Evaluator, that it was incumbent on the court to solicit further information from Evaluator through questioning at trial if the court thought her report was insufficient, and that the court should have accepted Evaluator’s recommendation without question because the court did not contest her qualifications and admitted her report into evidence without objection. But the record does not support Father’s complaints, and he does not support his argument with legal citation. The court invited Evaluator to augment her report at trial by “putt[ing] in context or explain[ing] or add[ing] flesh to the bones of the report,” and the court dialogued at length with Evaluator during direct questioning and cross-examination. Father’s complaint that the court discouraged additional testimony or additional explanation from Evaluator because it stated during her examination that “[n]ow that I have received the report, if she’s just going to read it, maybe there’s more effective ways for her to spend her time” is not compelling, especially because Father’s counsel agreed to “expedite the process a bit” by then focusing on Evaluator’s recommendations. Thus, Father does not persuade us that the court abused its discretion or committed legal error in choosing not to ask Evaluator further questions.

¶39      Next, Father takes issue with the court’s decision to reject Evaluator’s recommendation because it was “outdated” at the time of trial.[3] But Father fails to acknowledge that while all the statutory custody factors are equally important, “[a]t the critically important end of the spectrum, when [a] child is thriving, happy, and well-adjusted, lies continuity of placement.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. Utah law requires courts to “give substantial weight to the existing joint legal . . . custody order when the child is thriving, happy, and well-adjusted.” Utah Code § 30-3-10.4(2)(c). And here, the court relied heavily on continuity of placement as the basis for rejecting Evaluator’s report. The court found that the evidence presented at trial was “virtually unanimous” in establishing that the children were “happy, well-adjusted, and thriving under [their] current arrangement” and it rejected Evaluator’s contention that relocating the children back to Utah would not be that big of a deal because “[w]e don’t have a child . . . moving into a different developmental phase or a child with specific developmental needs.” Because the court heard the evidence on both sides and it explained why it was rejecting certain evidence, the court did not abuse its discretion or commit legal error. Thus, we see no infirmity in the court’s determination that Evaluator’s report was outdated by the time of trial.

¶40      We are, of course, sensitive to the emotional undercurrents giving rise to Father’s challenges on appeal. This appears to have been a very difficult case for both parties—both of whom love and care for their children. And we acknowledge the district court’s determination that both “parents are well suited to parent the children [who] are surrounded by an unusual amount of love on both sides of the family. . . . All children everywhere deserve to be loved as much as these children are.” But ultimately, the fact that Father disagrees with the court’s decision to deny his petition to modify does not render the district court’s findings inadequate or unsupported by the evidence, nor does it require an outright grant of custody in his favor. See Shuman v. Shuman, 2017 UT App 192, ¶ 10, 406 P.3d 258, cert. denied, 412 P.3d 1257 (Utah 2018).

¶41 In sum, Father has failed to meaningfully address the evidence supporting the district court’s findings or persuasively demonstrate that those findings are against the clear weight of the evidence or legally erroneous. We therefore affirm the district court’s denial of Father’s petition to modify custody and its associated adjustment to the parties’ legal custody arrangement.

III. Mother’s Attorney Fees Request

¶42 Finally, we address Mother’s challenge to the district court’s denial of her request for attorney fees incurred in responding to Father’s petition to modify. Mother asserts entitlement to fees under two different statutes, but we reject both of her arguments.

¶43 First, Mother claims that the court should have awarded her fees pursuant to a statute authorizing a court to award fees in cases where the “action” was “filed or answered frivolously and in a manner designed to harass the other party.” See Utah Code § 30-3-10.4(5). The court determined that whether the litigation was frivolous or filed with the intent to harass was “a very close call” but that Evaluator’s change-of-custody recommendation provided Father with at least some basis to file his petition. We agree. The district court has discretion to determine whether an action was filed frivolously or with an intent to harass, and we will not substitute our judgment for that of the district court unless the action it takes is so flagrantly unjust as to constitute an abuse of discretion. See Wall v. Wall, 700 P.2d 1124, 1125 (Utah 1985). We discern no abuse of discretion in the court’s determination not to award fees under section 30-3-10.4(5) of the Utah Code.

¶44      Second, Mother claims that the court should have awarded her fees under a different statute, one that authorizes courts to order one party to pay fees to the other in order “to enable the other party to prosecute or defend the action.” See Utah Code § 30­3-3(1). The court denied Mother’s request for fees under this statute based on its determination that Mother did not produce evidence of her financial need. When reviewing requests for attorney fees in divorce proceedings, “both the decision to award attorney fees and the amount of such fees are within the [district] court’s sound discretion.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476 (quotation simplified). However, the party to be awarded attorney fees under this statute has the burden to prove (1) that the payee spouse has a financial need, (2) that the payor spouse has the ability to pay, and (3) that the fees requested are reasonable. See Dahl v. Dahl, 2015 UT 79, ¶ 168, 459 P.3d 276.

¶45 Here, Mother argues that the district court erred in concluding that an award of fees was not warranted when it determined that “Mother did not adduce any evidence of her need for an award of attorney’s fees under section 30-3-3(1).” Mother contends that there was evidence before the court to demonstrate her need and Father’s ability to pay. Specifically, Mother points to the parties’ stipulated order from 2017 that showed the parties’ incomes and the custody evaluation that reported the parties’ incomes in 2020. But Mother did not point to this evidence in connection with her fee request, and we do not think it is incumbent on a district court to comb through the record to find evidence of a party’s need. Rather, the party to be awarded fees has the burden to submit that evidence or at least point the court to that evidence and ask that the court utilize that evidence to determine need.

¶46      Accordingly, we affirm the district court’s conclusion that fees were not warranted in this case.

CONCLUSION

¶47      We conclude that the evidence supports the district court’s findings and conclusions that relocating the children back to Utah would not be in the children’s best interest and supports the denial of Father’s petition to modify. We further conclude that the district court did not abuse its discretion in denying Mother’s request for attorney fees. Affirmed.

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


[1] Mother has remarried and has adopted her husband’s surname, Sahim.

[2] As this court stated in Kimball v. Kimball, 2009 UT App 233, 217

P.3d 733:

After all, it is the [district] court’s singularly important mission to consider and weigh all the conflicting evidence and find the facts. No matter what contrary facts might have been found from all the evidence, our deference to the [district] court’s pre-eminent role as fact-finder requires us to take the findings of fact as our starting point, unless particular findings have been shown, in the course of an appellant’s meeting the marshaling requirement, to lack legally adequate evidentiary support.

Id. ¶ 20 n.5.

[3] In addition to rejecting Evaluator’s report for being outdated, the court rejected the report because it “fail[ed] to adequately address the evidence presented at trial.” Specifically, the court noted that the report “mentions but glosses over Father’s sending the children away from New Jersey, choosing several times thereafter not to live near the children (including now), preventing them from traveling to Tahiti, and declining to engage [Son] regarding his baptism.” Father takes issue with the court’s reasoning on each point, arguing that the court “did not agree with [Evaluator’s] expert view and analysis of the evidence.” But his argument is limited to merely explaining his view of why each of these events happened and why Evaluator did not find them important. Father does not show that the court’s view was unsupported by the evidence. And regardless of these stated reasons, the court’s decision to reject the report because it was outdated was entirely proper.

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Flat Fee Billing Questions

I am frequently asked questions about my flat fee billing.

I bill on a weekly flat fee basis. Usually $500 per week, although the weekly fee can be higher if the case is a an unusually challenging or demanding one. The most common questions I get about my flat fee billing are:

So, it will be $500 a week until the divorce is final? What if no progress or work has been done that week?

The main concern behind that question is really, “How bad is the cost of hiring a divorce lawyer going to get?” It’s a very important question. And the answer is: retaining a good lawyer’s services will be expensive. There is, unfortunately, no way around that. Hiring cheap divorce lawyers usually results in you getting what you pay for.[1]

My flat fee structure is, however, one of the least expensive ways to get high quality legal services.

When you pay your lawyer by the hour, you’re handing the lawyer a blank check.

This is why I state my fees up front as a weekly flat fee of $500. And I subject each week’s fee to a “satisfaction or you don’t pay” guarantee for each week’s fees.

Candidly, if I billed by the hour, I would make more money. People who become a divorce lawyer’s client for the first time usually don’t have a very good idea of how much time and effort an attorney puts into the work.

A 10-page memorandum can take several days to research and write. If the attorney bills at the rate of $300 per hour and spends 3-4 hours per day for three days on the memorandum, that’s $2,700. In just three days. I bill $500 flat fee per week. Thus, it should not come as a surprise if, in a particular day or week, I do several thousand dollars’ worth of work (had the work been billed at an hourly rate) and then the next day/week I do comparatively very little work, if any work at all. The point is that the fees even out over time.

I modeled my flat fee billing on the “budget programs” that many utility companies implemented. If you’re not already a part of such a program yourself, they work like this: the utility company figures out what you spend each month for heat or electricity in a year.

Most people use more natural gas and electricity for heat in the fall and winter months than in the spring and summer months. If you paid as needed, you would pay less in the spring and summer and more in the fall and winter. That can make it hard to stick to a monthly budget when your expenses fluctuate each month.

The budget program helps make it easier to budget for your payments by taking the average of what you pay each month over a year’s time and then charging you that average amount each month. That way you know what you’re paying each month, instead of each month being a surprise, and the utility companies still get paid in full for what they provided. Budget plans, like my flat fees schedule, make it easier to budget what you’ll be paying each month because you know up front what you pay each month.

Other questions that arise when talking about my flat fee billing are:

  • Do I pay $500 per week until the divorce is final?
  • What if no progress has been made or no work has been done that week?

To answer those questions:

  • A client pays $500 per week, with the exception of substantial lulls in the case when there is no work to be done while we wait on someone or some event. If all the work that needs to be done is done and we’re just waiting for a week or several weeks before a hearing, for example, then the $500 weekly fee is suspended during such lulls.
  • Subject to the exceptions I described in response to Question 1, a client pays $500 per week until the proposed Findings of Fact and Conclusions of Law and proposed Decree of Divorce has been submitted to the court for signing.

And I don’t get this question enough, so I will ask and answer it myself here: Question: are there any other costs besides the $500 per week?

Answer: Yes, there can be and usually are. They include:

  • Fees Charged on a Full-day or Half-day Basis. Fees charged in addition to you your weekly fixed fee, in the amount of $2,400 per full day (no less than 5 hours and no more than 7 hours per day), or $1,200 per half day (up to 4 hours) include fees for: a) Mediation (you almost certainly will go to mediation); b) Evidentiary Hearings (these rarely occur in the typical divorce case); c) Depositions (it is likely you may depose the opposing party or be deposed by the opposing party in your case), the fee for a deposition is paid in advance of the date(s) set for the deposition(s).
  • Proffer Hearing or Pretrial Conference Fee. If you have any proffer hearings or pretrial conferences (you probably will), the fee for proffer hearings and pretrial conferences is $500 per hearing/conference. “Proffer” means an offering of proof. In a proffer hearing your attorney summarizes for the court what you and other witnesses would have said, instead of actually having you or the witness(es) testify in court.
  • Trial preparation fee. If the case is ready to certify as ready for trial or is actually certified as ready for trial by the opposing party, the trial preparation fee (in addition to your weekly fixed fee, any other expenses, expert witness fees, equipment fees, fees charged by third parties, and other litigation expenses) is $4,800 for every day of trial, which fee is due within seven calendar days of date the firm notifies you a) that it is ready to certify the case as ready for trial; or b) the opposing party has certified the case as ready for trial, whichever comes first. To ensure there is no confusion, understand that the preparation fee for each day of trial is $4,800. Each full day in trial is an additional $2,400, and each half day in trial is $1,200.
  • Fees for additional and/or unanticipated work, if any. You understand that unforeseen circumstances can arise and/or that the court, the opposing party/opposing counsel, or other people or organizations may act in ways that were not planned for, that were unforeseen, and/or that are beyond the firm’s control and that may require further time and charges not contemplated by this fixed fee agreement. Any additional fees for any additional and/or unanticipated work that you may need or want done over and above what the firm intended and anticipated the weekly $500 fixed fee to cover will be agreed upon between you and the firm and reduced to writing before any such additional work is performed and charged.
  • All expenses the firm may incur or advance in connection with providing legal services will be billed to you separately. All variable expenses will be billed according to the actual amount of the expense. Examples of variable expenses include, but are not limited to, filing fees, recording fees, deposition costs, expert witness fees, investigator fees, postage, photocopying, parking, etc. Court filing fees. The court itself, not the firm, charges a $333 filing fee to file a complaint for divorce, a $100 court fee to file a counterclaim for divorce. If your case requires paying a filing fee, your court filing fee is an expense that you pay.

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

[1] That stated, it isn’t true that the more you pay a divorce lawyer the better you’ll do. You can waste money on a lawyer who charges too much just as easily as you can waste money on a lawyer who charges you too little to get the job done right. Make sure you find the best value for the money when you retain a lawyer’s services.

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Erickson v. Erickson – 2022 UT App 27

THE UTAH COURT OF APPEALS

DEAN ERICKSON,

Appellee,

v.

JANICE ERICKSON,

Appellant.

Opinion

No. 20200193-CA

Filed March 3, 2022

Third District Court, Salt Lake Department

The Honorable Todd M. Shaughnessy

No. 174901105

Albert N. Pranno, Attorney for Appellant

Jordan M. Putnam, Attorney for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN

FORSTER concurred. HAGEN, Judge:

¶1        During their thirty-four years of marriage, Dean and Janice Erickson acquired substantial assets, including a veterinary pharmaceutical business.[1] But, in anticipation of their divorce, Janice engaged in an intentional scheme to dissipate those assets and devalue the marital estate. Solely because of Janice’s misconduct, the district court appointed a receiver, ordered a valuation of the couple’s business, and sanctioned Janice with the obligation to pay all Dean’s attorney fees and costs.

¶2        Janice now contends that the court erred when it failed to deduct her personal goodwill when calculating the value of the couple’s business, excluded her rebuttal expert on valuation, and imposed sanctions against her that were greater than the injury her misconduct caused Dean. We affirm on the first two issues and remand on the third.

BACKGROUND[2]

¶3        Dean filed for divorce from Janice in early 2017. The couple’s marital estate consisted of substantial assets, including a veterinary pharmaceutical business, Meds for Vets, LLC (Meds). Meds “is a pharmaceutical compounding business with many employees.” The company “does the majority of its business online through its website” and sells “to customers throughout the country.” At the time of the divorce, Meds employed three pharmacists who held the necessary licenses to conduct the business. Janice was one of those pharmacists and held “the majority of the licenses.” Janice also functioned “as the sole manager and chief executive officer of Meds.”

¶4        Around the time Dean filed for divorce, Janice entered into a series of fake business contracts with a friend for the purpose of dissipating marital assets. Dean moved the court for a temporary restraining order, asking the court to appoint a receiver for Meds. The court denied the temporary restraining order but appointed a receiver for Meds in an effort “to prevent further irreparable injury/harm to the marital estate through waste/dissipation of marital assets.” At the recommendation of the receiver, Janice was allowed to continue her role in the company due to her “familiarity with the industry, regulatory environment and existing relationship[] with the customer base . . . so as to not disrupt [Meds’] operations and employees.”

¶5        In addition to the oversight of Meds, the receiver had authority to conduct an “investigation concerning whether and how the joint marital assets . . . were used or misused and how to effectively separate the parties and their marital estate in all business regards.” In its final report to the court, the receiver concluded that Janice had dissipated known marital assets totaling $2,247,274. Janice accomplished that feat, in part, by unilaterally entering into a fraudulent “business relationship which resulted in a substantial and ongoing dissipation of marital assets.”

¶6        The receiver was also charged with “perform[ing] a valuation of the normalized operation of Meds.” The final report included a business valuation placing Meds’ value at $1,560,000. The valuation report explained the different factors considered, including “whether or not the enterprise has goodwill or other intangible value.” Ultimately, the valuation did not include any amounts associated with goodwill.

¶7        The court scheduled a trial on December 2, 2019, the Monday after the Thanksgiving holiday, to determine the final division of the marital estate. The pretrial disclosure deadline was set for November 4, but Janice moved to extend the deadline. The court granted her motion, extending the deadline to Tuesday, November 26 at 5:00 p.m.

¶8        Just before 5:00 p.m. on November 26, Janice filed a disclosure that identified a valuation expert she intended to call as a rebuttal witness. But she did not serve the disclosure on Dean’s attorney until after the deadline had passed. In addition, she did not provide the expert’s report to Dean’s attorney until the afternoon of Wednesday, November 27—the day before Thanksgiving and less than five days before trial.

¶9        On the first day of trial, Janice asked to call her valuation rebuttal expert as the first witness because it was the only day he was available to testify. Dean objected to the admission of the expert’s testimony because it was untimely disclosed, giving Dean insufficient time to prepare. The court allowed Janice to call the expert out of order and reserved its ruling on Dean’s objection until after the expert testified. During his testimony, the expert opined that the receiver’s valuation had overstated Meds’ value as an ongoing business by improperly considering Janice’s personal goodwill.

¶10 The court ultimately excluded the expert’s testimony based on Janice’s untimely disclosure. See Utah R. Civ. P. 26(d)(4) (“If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.”) The expert had testified that it had taken him only a few weeks to prepare his report, but that Janice had not hired him until shortly before trial. Accordingly, the court found that Janice “had ample opportunity to seek an independent valuation of the marital businesses at her own expense” and noted that it had “addressed this issue with [Janice] several times.” The court further found that Dean had an “understandable inability to be able to fully address [that information] in the limited time that remained prior to trial.”

¶11 The court alternatively ruled that even if it had not excluded Janice’s valuation rebuttal expert as untimely, his testimony was unpersuasive. The court rejected the expert’s opinion, based on Janice’s own representations, that Meds’ value was dependent on Janice’s personal goodwill. The court noted that Utah case law generally associates personal goodwill with “sole proprietorships essentially run by one person” and that such businesses are not “comparable to the situation here with [Meds].” The court also found that it had “not been provided any evidence from which [it could] draw a conclusion that [Janice’s] presence at [Meds], given the point to which its grown, is essential for that business to continue, given the number of employees and the extent of the operations that it has.”

¶12 After trial, the court entered a supplemental decree regarding the division of marital assets. The court “affirm[ed] and accept[ed] all recommendations, valuations, findings, and conclusions contained” in the receiver’s reports, unless the decree stated otherwise, “and incorporate[d] them by reference” into the decree, including the receiver’s $1,560,000 valuation of Meds.

¶13 Due to Janice’s “intentional efforts to dissipate marital assets,” the court also assigned the cost of the receivership and Dean’s attorney fees to Janice as a sanction for contempt and other misconduct. The court found that Janice’s behavior was sanctionable because she “engaged in substantial dissipation of marital assets” that was, “in some cases, in direct violation of this Court’s orders.” Indeed, “the approximately $2.5 million [she] dissipated . . . was one of the largest, if not the largest, blatant dissipation of marital assets the Court ha[d] ever seen.”

¶14 With respect to Dean’s legal fees, the court found that Janice’s contemptuous conduct forced Dean to incur “extraordinary legal costs in enforcing Court orders and attempting to track down and preserve marital assets” and that a “substantial amount of additional work [was] required to address the dissipation issues in this case” because of Janice. The court found that it was therefore appropriate and equitable to assign all Dean’s attorney fees to Janice because “[t]he lion’s share of [Dean’s] legal costs were incurred in connection with issues surrounding the dissipation of marital assets and the nefarious conduct engaged in by [Janice] in this case.”

¶15 More than three months after trial, Janice filed a motion for new trial pursuant to rule 59 of the Utah Rules of Civil Procedure, arguing that there was irregularity in the trial proceedings, that there was insufficient evidence to support the valuation of Meds, and that the court erred in awarding Dean attorney fees. The court dismissed that motion as untimely without reaching the merits.

ISSUES AND STANDARDS OF REVIEW

¶16 Janice now appeals, raising three issues. First, she contends the district court erred in the value it assigned to Meds because it failed to exclude the value of her personal goodwill. A district court is “entitled to a presumption of validity in its assessment and evaluation of evidence, and we defer to the district court’s findings of fact related to property valuation and distribution unless they are clearly erroneous.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 10, 440 P.3d 757 (cleaned up).

¶17 Second, she contends the court erred in excluding her valuation rebuttal expert as a sanction for untimely disclosure. “We review a district court’s decision [to impose] sanctions under rule 26(d)(4) for an abuse of discretion.” Segota v. Young 180 Co., 2020 UT App 105, ¶ 10, 470 P.3d 479 (cleaned up). We will find abuse of discretion where there exists an erroneous conclusion of law or “where there is no evidentiary basis for the trial court’s ruling.” Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 15, 438 P.3d 25 (cleaned up), aff’d 2020 UT 59, 472 P.3d 927.

¶18 Third, she contends that the court erred when it ordered her to pay all Dean’s attorney fees and costs, rather than limiting the award to the amounts caused by her sanctionable conduct. “Both the decision to award attorney fees and the amount of such fees are within the sound discretion of the trial court.” Taft v. Taft, 2016 UT App 135, ¶ 86, 379 P.3d 890 (cleaned up).

ANALYSIS

I. The Valuation of Meds

¶19      In her challenge to the district court’s valuation of Meds, Janice argues that the court failed to consider the value of her personal goodwill.[3] “When valuing a business in marriage dissolution cases, district courts must consider whether goodwill is institutional or personal to one spouse.” See Marroquin v. Marroquin, 2019 UT App 38, ¶ 15, 440 P.3d 757. Goodwill is personal when the business “is dependent for its existence upon the individual who conducts the enterprise and would vanish were the individual to die, retire or quit work.” Stevens v. Stevens, 754 P.2d 952, 956 (Utah Ct. App. 1988). Personal goodwill is based on an individual’s “reputation for competency.” Marroquin, 2019 UT App 38, ¶ 15. And unlike institutional goodwill, personal goodwill is not subject to distribution in the marital estate. Id.

¶20      Janice contends that the district court erred as a matter of law by failing to consider whether the value of the business depended on goodwill that was personal to her and thus not divisible. We disagree. The district court did consider goodwill in valuing the business, but specifically found that there was no personal goodwill associated with Meds. Unless the court clearly erred, we presume this assessment is valid and we defer to its findings. See id. ¶ 10.

¶21      In finding that there was no personal goodwill associated with Meds, the court rejected Janice’s contention that Meds was comparable to a sole proprietorship and that her “personal goodwill, as opposed to entity or enterprise goodwill,” should have been excluded in valuing the company. The court concluded that Meds was unlike “sole proprietorships essentially run by one person”—where the value of the company rests primarily on the work and professional reputation developed by the proprietor—“given the number of [Meds] employees and the extent of its operations.”

¶22 On appeal, Janice claims that the court failed to consider the personal goodwill engendered by her own “management and licensure role” in Meds. Before the receiver’s appointment, Janice “had acted as sole manager and chief executive officer of the company,” but there was no evidence to suggest that placing someone else in that role would diminish the value of the company. Indeed, the court specifically found that it had not been “provided any evidence from which [it could] draw the conclusion that her presence at the business, given the point to which it’s grown, is essential for that business to continue given the number of employees and the extent of operations it has.” Janice has not demonstrated that those findings were clearly erroneous.

¶23 As evidence of her personal goodwill, Janice cites the receiver’s report that some Meds employees “attributed the company’s declining revenue, in part, to [Janice] being distracted by the divorce.” But the decline in Meds’ revenue during this period does not suggest that the company’s value was dependent on Janice being in a management role. To the contrary, the court found that Janice’s continued involvement was detrimental because she “continue[d] to take steps to harm and devalue” Meds, even after the appointment of the receiver. In other words, Meds’ declining revenue during that time was caused not by Janice’s inattention to her management role, but by her deliberate efforts to devalue the company.

¶24 Janice also points to the fact that the company used her licenses to operate in multiple states. The court found, however, that Meds holds the necessary pharmacy licenses among three pharmacists. And there was no evidence that Janice’s licenses could not be obtained by the other pharmacists already on staff or that Meds could not hire a replacement pharmacist with those licenses. Thus, the fact that some licenses were historically held by Janice does not undermine the court’s finding that the value of Meds as an ongoing business did not depend on Janice’s involvement.

¶25 In sum, the record shows that the court considered and rejected Janice’s contention that her personal goodwill was included in the valuation of the business, and Janice has not shown that those findings were clearly erroneous. Therefore, there is no basis on which to disturb the court’s valuation of Meds.

II. Excluding Janice’s Rebuttal Expert

¶26 Next, Janice challenges the court’s ruling excluding her valuation rebuttal expert based on her untimely disclosure. Expert disclosures are governed by rule 26 of the Utah Rules of Civil Procedure. Under that rule, proper disclosure of an expert witness requires the timely disclosure of “(i) the expert’s name and qualifications, . . . (ii) a brief summary of the opinions to which the witness is expected to testify, (iii) the facts, data, and other information specific to the case that will be relied upon by the witness in forming those opinions, and (iv) the compensation to be paid for the witness’s study and testimony.” Utah R. Civ. P. 26(a)(4)(A). “If a party fails to disclose or to supplement timely a disclosure or response to discovery, that party may not use the undisclosed witness, document, or material at any hearing or trial unless the failure is harmless or the party shows good cause for the failure.” Id. R. 26(d)(4). “Thus, Utah law mandates that a trial court exclude an expert witness disclosed after expiration of the established deadline unless the district court, in its discretion, determines that good cause excuses tardiness or that the failure to disclose was harmless.” Solis v. Burningham Enters. Inc., 2015 UT App 11, ¶ 21, 342 P.3d 812 (cleaned up); see also Arreguin-Leon v. Hadco Constr. LLC, 2018 UT App 225, ¶ 22, 438 P.3d 25 (“[I]f a party fails to disclose or supplement a discovery response, the evidence or testimony may not be used.”), aff’d 2020 UT 59, 472 P.3d 927.

¶27 Janice does not dispute that the disclosure of her valuation expert and his report was untimely. The question is whether Janice established an exception to the otherwise mandatory sanction of exclusion under rule 26(d)(4). We conclude that the district court did not exceed its discretion in rejecting Janice’s claim that her untimely expert disclosure was either harmless or justified.

¶28 First, the record amply supports the court’s conclusion that the untimely expert disclosure was not harmless. The court enlarged Janice’s time to serve her disclosures, extending her deadline from November 4 to November 26 at 5:00 p.m.—a mere six days before trial. On November 26, “shortly before 5:00 p.m.” Janice filed her expert disclosure with the court, but she did not serve that disclosure on Dean’s counsel until after the 5:00 p.m. deadline. Moreover, she did not serve the expert report until the following afternoon, the day before Thanksgiving. The timing left only the holiday weekend for Dean’s counsel to review the expert report and prepare to meet that testimony before the trial began on Monday. On the first day of trial, Janice called her rebuttal expert witness out of order, depriving Dean of any additional time he might have had to prepare during the course of the trial. The purpose of rule 26 is to eliminate unfair surprise and provide the opposing party with a reasonable opportunity to prepare for trial. Drew v. Lee, 2011 UT 15, ¶ 28, 250 P.3d 48. Here, the late disclosure deprived Dean of a reasonable opportunity to prepare to rebut the newly disclosed expert’s testimony. Under these circumstances, the district court acted well within its discretion in concluding that the late disclosure was not harmless.

¶29 Second, the record also supports the court’s determination that Janice had no good reason to delay disclosing her expert and his report. The court found that it gave Janice “months” to “call an expert to dispute the valuation that was done by the court-appointed receiver,” yet she waited until “a couple weeks” before trial to hire her valuation rebuttal expert. Moreover, the court found that Janice’s excuse for not hiring an expert—that she was waiting because she wanted the marital estate to pay for the expert—“carrie[d] no water with [the court]” because the court had made clear, at least since the previous August, that Janice had to pay for her own rebuttal valuation expert. Under these circumstances, the district court did not exceed its discretion in finding that the delay was unjustified.

¶30 We conclude that the district court did not abuse its discretion in finding that Janice’s untimely disclosure was neither excused for good cause nor harmless to Dean. Therefore, the district court correctly applied the automatic sanction dictated by rule 26(d)(4) and excluded the expert’s testimony.

III. Sanction of Attorney Fees and Costs

¶31 On appeal, Janice does not challenge the court’s finding that she engaged in sanctionable conduct and acknowledges that “the bulk of the court’s award of fees and allocation of costs were within the court’s authority.” Instead, she argues that the award was excessive because it included some attorney fees and costs not attributable to her sanctionable conduct. Because we cannot determine whether the attorney fees award exceeded the costs that Dean incurred as a result of Janice’s sanctionable conduct, we remand to the district court for further proceedings.

¶32 “[W]hen a court imposes an award of fees or costs as a sanction, its award must be limited to the amount actually incurred by the other party” as a result of the sanctionable conduct. Goggin v. Goggin, 2013 UT 16, ¶ 36, 299 P.3d 1079. In Goggin, the district court awarded the former wife all her attorney fees and costs after finding that they were “largely due to [her former husband’s] untoward and contemptuous behavior.” See id. ¶ 38 (cleaned up). Our supreme court reasoned that “this language implies that [the former wife] may have been awarded at least some attorney fees and out-of-pocket costs that were not caused by [the former husband’s] contemptuous behavior.” Id. (cleaned up). The supreme court therefore held that the district court had exceeded its discretion by awarding costs and fees in excess of the amount attributed to the sanctionable conduct. Id.

¶33 Here, it is not clear whether the district court limited the award to the fees and costs that Dean incurred as a result of Janice’s sanctionable conduct. In assigning the entire cost of Dean’s attorney fees and expenses to Janice, the court found that Dean had incurred “extraordinary legal costs in enforcing Court orders and attempting to track down and preserve marital assets” and that a “substantial amount of additional work [had been] required to address the dissipation issues in this case.” Yet the court also found that Dean’s legal fees and costs “incurred in connection with issues surrounding the dissipation of marital assets and the nefarious conduct engaged in by [Janice]” merely constituted the “lion’s share” of Dean’s legal fees. Like the district court’s use of the term “largely” in Goggin, the use of the term “lion’s share” here suggests that a portion of Dean’s fees and costs were not the direct result of Janice’s sanctionable conduct. To the extent that the attorney fees award included such additional costs, it exceeded the district court’s discretion.

¶34 Accordingly, we vacate the attorney fee award and remand for further proceedings. On remand, the district court should either make findings to support the determination that all Dean’s legal expenses were caused by Janice’s sanctionable conduct or modify the award to exclude any amounts not caused by that conduct.[4]

CONCLUSION

¶35 Janice has not shown that the court failed to consider goodwill in valuing the business or that it clearly erred in finding that there was no personal goodwill associated with Meds. Nor has she shown that the court exceeded its discretion in determining that her untimely expert disclosure was not harmless or justified. However, to the extent that the attorney fees award exceeded the costs Janice’s sanctionable conduct caused Dean to incur, the court exceeded its discretion in granting that award. Therefore, we remand for further proceedings on that issue consistent with this opinion.[5]

—————————————————————-

[1] As is our practice when parties share the same last name, we refer to each by their first names, intending no disrespect to either party.

[2] “On appeal 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, and we present conflicting evidence to the extent necessary to clarify the issues raised on appeal.” Nakkina v. Mahanthi, 2021 UT App 111, n.2, 496 P.3d 1173 (cleaned up).

[3] Janice also argues that there was “[i]rregularity in the proceedings” because the receiver “hire[d] a business valuator who is . . . a partner with the receiver at the [same] firm.” But this issue was not preserved. See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968 (explaining that for an issue to be preserved “(1) the issue must be raised in a timely fashion; (2) the issue must be specifically raised; and (3) a party must introduce supporting evidence or relevant legal authority” (cleaned up)). Janice did not challenge this alleged irregularity below. It appears that Janice may have attempted to raise the issue in a motion pursuant to rule 59 of the Utah Rules of Civil Procedure, see Utah R. Civ. P. 59(a)–(a)(1) (providing that “a new trial may be granted to any party on any issue” because of “irregularity in the proceedings of the court, jury or opposing party, or any order of the court, or abuse of discretion by which a party was prevented from having a fair trial”), but the district court properly refused to consider that motion as untimely, and the issue is therefore unpreserved for appeal, see Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 30, 163 P.3d 615 (holding that an issue raised in an untimely posttrial motion was not preserved for appellate review where district court “properly refused to address the” untimely motion).

[4] Dean argues that even if the district court awarded attorney fees and costs not attributable to Janice’s contemptuous behavior, that error was harmless because a mathematical error resulted in Janice not paying the intended award. If the district court determines that “a clerical mistake or a mistake arising from oversight or omission” has occurred, the court may correct the mistake on remand. See Utah R. Civ. P. 60(a).

[5] “Although [Dean] requests attorney fees on appeal, because the trial court awarded [him] attorney fees only as a sanction for [Janice’s] conduct during litigation, we deny that request.” Liston v. Liston, 2011 UT App 433, ¶ 27, n.6, 269 P.3d 169.

Erickson v. Erickson – 2022 UT App 27

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

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Why is a lawyer charging me $1,500 for a court order?

I do not know. Ask your lawyer. And ask sincerely. Feel free to be frank, but ask sincerely.

If his/her answer does not make sense (and you’re being honest with yourself and not trying to act as though you don’t understand), then say so.

If, after your lawyer takes another stab at explaining the bill, your lawyer’s answers still honestly don’t make sense, it may be that you were overcharged.

If you honestly believe you were overcharged (and you aren’t simply making false claims of being overcharged for the purpose of taking advantage of your attorney), then say so. If your attorney agrees (whether he/she will admit it or not), your attorney may reduce your bill.

If your attorney will not reduce the bill despite your complaints/requests for a reduction, then you may have good cause to take the matter up with the bar association and/or with a court.

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

https://www.quora.com/Why-is-a-lawyer-charging-me-1500-for-a-court-order/answer/Eric-Johnson-311

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How do I best grab the attention of an attorney regarding a child custody case that is unusual, difficult, and I need help?

With money. 

And enough money to prove you can afford to pay the attorney to do the job well. 

Enough money to make the job worthwhile for the lawyer. That’s not just the best way, it’s effectively the only way. With rare, rare exception (so rare it’s not worth so much as hoping for) lawyers practice law for a living, not for fun, not out of their love for humanity generally and not for you or your child. They can’t. 

Trying to appeal to the lawyer’s sympathies or trying to guilt the attorney into helping won’t work, but go ahead and try, if you don’t believe me. 

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

https://www.quora.com/How-do-I-best-grab-the-attention-of-an-attorney-regarding-a-child-custody-case-that-is-unusual-difficult-and-I-need-help/answer/Eric-Johnson-311

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How long will an attorney work on your case if you can’t afford to pay them any more? This would be for a divorce, and they start to realize that they’re not going to get money from the other spouse. 

Good question. 

It depends mostly upon whether your attorney has a big heart and/or no head for business.

Generally, an attorney who takes your case without being paid as he/she goes but defers payment in the hope that he/she will be paid out of what you collect from your spouse is probably not a very intelligent or competent attorney. Some attorneys (usually new ones or desperate ones—and desperate ones are often new ones) will work a case, even if a client stops paying for his/her work, long after the client stops paying. These kinds of attorneys do this in the desperate hope that the client will eventually pay or because they believe that by getting stiffed, they are heroes/martyrs. In truth, however, these kinds of attorneys are simple fools because clients who have stopped paying (not fallen behind but got caught up—those kinds of clients are fairly common, and we’ve all been a little short sometimes, so it’s good when a creditor will cut us a little slack, as long as we don’t abuse the creditor’s good will) almost never, ever resume paying or paying their past due balances. 

To be sure, sometimes a client honestly runs out of money, and when that occurs, the attorney must understand that he/she cannot stay in business working for people who don’t pay for his/her services. There is a class of clients who are simply grifters; they seek out the easy marks and when they find them, they exploit them. These are people who deliberately plan on paying an attorney some money up front to get a case going (and to get the attorney mentally and emotionally invested in the case), who then stop paying but keep the attorney slaving away by telling the attorney things along the lines of, “Oh, I’ve had some hard times, but I will pay you just as soon as I can, so keep working and I’ll pay you eventually, I promise,” or “Once you win me that chunk of money, I’ll pay you out of that,” or, “Please help me! I need this so badly! Think of the children!!!,” stuff like that. Such clients are poison. 

Some lawyers (I was such a lawyer once) believe that non-paying clients are better than no clients, so they keep working for non-paying clients in the pathetic (but all too human) belief/hope that the client will be so happy with the great work the attorney does that the client cannot help but finally pay the bill out of gratitude and decency. Such lawyers are chumps. Other attorneys get a sense of nobility from working without pay “to help a struggling client” and to “make my little corner of the world a better place”.

Now don’t get me wrong: attorneys will, at times, volunteer to help those who are poor, but there’s a difference between choosing to work without pay and being duped into working without pay. There’s nothing noble about being a sucker. 

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

Tags: , , , , , ,

How long will an attorney work on your case if you can’t afford to pay them any more? This would be for a divorce and they start to realize that they’re not going to get money from the other spouse.

It depends mostly upon whether your attorney has a big heart and/or no head for business. Generally, an attorney who takes your case without being paid as he/she goes, but defers payment in the hope that he/she will be paid out of what you collect from your spouse is probably not a very intelligent or competent attorney.

Some attorneys (usually new ones or desperate ones—and desperate ones are often new ones) will work a case, even if a client stops paying for his/her work, long after the client stops paying. These kinds of attorneys do this in the desperate hope that the client will eventually pay or because they believe that by getting stiffed they are heroes/martyrs.

In truth, however, these kinds of attorneys are simple fools because clients who have stopped paying (not fallen behind but got caught up—those kinds of clients are fairly common, and we’ve all been a little short sometimes, so it’s good when a creditor will cut us a little slack, as long as we don’t abuse the creditor’s good will) almost never, ever resume paying or paying their past due balances.

To be sure, sometimes a client honestly runs out of money, and when that occurs, the attorney must understand that he/she cannot stay in business working for people who don’t pay for his/her services.

There is a class of clients who are simply grifters; they seek out the easy marks and when they find them, they exploit them. These are people who deliberately plan on paying an attorney some money up front to get a case going (and to get the attorney mentally and emotionally invested in the case), who then stop paying but keep the attorney slaving away by telling the attorney things along the lines of, “Oh, I’ve had some hard times, but I will pay you just as soon as I can, so keep working and I’ll pay you eventually, I promise,” or “Once you win me that chunk of money, I’ll pay you out of that,” or, “Please help me! I need this so badly! Think of the children!!!,” stuff like that. Such clients are poison.

Some lawyers (I was such a lawyer once) believe that non-paying clients are better than no clients, so they keep working for non-paying clients in the pathetic (but all too human) belief/hope that the client will be so happy with the great work the attorney does that the client cannot help but finally pay the bill out of gratitude and decency. Such lawyers are chumps.

Other attorneys get a sense of nobility from working without pay “to help a struggling client” and to “make my little corner of the world a better place”. Now don’t get me wrong: attorneys will, at times, volunteer to help those who are poor, but there’s a difference between choosing to work without pay and being duped into working without pay. There’s nothing noble about being a sucker.

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

https://www.quora.com/How-long-will-an-attorney-work-on-your-case-if-you-cant-afford-to-pay-them-any-more-This-would-be-for-a-divorce-and-they-start-to-realize-that-theyre-not-going-to-get-money-from-the-other-spouse/answer/Eric-Johnson-311?prompt_topic_bio=1

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

2021 UT App 77  THE UTAH COURT OF APPEALS  

  

LISA P. MINER, Appellee,  

JOHN E. MINER, Appellant.  

  

Opinion  

No. 20200098-CA  

Filed July 15, 2021  

  

Fifth District Court, St. George Department  

The Honorable Jeffrey C. Wilcox No. 174500373  

  

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

  1. Adam Caldwell, Attorney for Appellee 

  

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

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

  

HARRIS, Judge:  

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

BACKGROUND  

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW  

¶11 John now appeals the trial court’s rulings, and presents two principal issues for our review. First, he challenges several aspects of the trial court’s alimony award. Where such challenges are preserved, we review all aspects of the trial court’s “alimony determination for an abuse of discretion and will not disturb its ruling on alimony as long as the court exercises its discretion within the bounds and under the standards [our supreme court has] set” and so long as the trial court “has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84, 459 P.3d 276 (quotation simplified). However, John acknowledges that some of his challenges to the court’s alimony award are unpreserved, including some of his challenges to certain line items in the court’s calculation of Lisa’s needs. At John’s request, we will review these unpreserved challenges for plain error. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 37–39, 402 P.3d 219. “To demonstrate plain error, [an appellant] must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” Id. ¶ 32 (quotation simplified).3 

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

ANALYSIS  

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

  1. Alimony 

¶14 Under Utah law, “the primary purposes of alimony . . . are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified). “Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (quotation simplified). During their marriage, John and Lisa enjoyed a very comfortable lifestyle and high standard of living, and to allow Lisa to participate in that lifestyle following the divorce, the court ordered John to pay Lisa $18,690 per month in alimony for a twenty-year period.   

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

  1. Amount of Alimony  

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

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

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

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

  1. Lisa’s Needs 

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

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

  1. Tennis Expenses  

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

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

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

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

  1. Entertainment  

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

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

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

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

  1. Legal and Accounting Expenses  

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

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

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

  1. Out-of-Pocket Health Expenses  

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

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

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

  1. Car Payment  

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

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

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

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

  1. Student Loan Payments  

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

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

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

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

  1. Farm and Horse Expenses  

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

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

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

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

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

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

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

  1. Mortgage and House-Related Expenses  

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

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

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

  1. i.  Parenting Expenses 

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

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

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

  1. Retirement Savings and Asserted Mathematical Error  

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

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

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

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

  1. Tax-Related Expenses  

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

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

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

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

  1. Lisa’s Earning Capacity 

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

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

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

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

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

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

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

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

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

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

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

  1. John’s Ability to Provide Support 

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

  1. Farm Income  

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

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

  1. John’s Business Expenses  

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

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

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

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

  1. John’s Medical Income and Work Expectations  

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

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

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

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

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

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

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

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

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

  1. Duration of Alimony  

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

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

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

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

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

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

  1. Retroactive Alimony  

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

  1. Stipulation 

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

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

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

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

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

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

  1. Reductions in Retroactive Award 

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

(…continued)  

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

  

  1. Attorney Fees 

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

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

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

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

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

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

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

CONCLUSION  

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

 

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Thomas v. Thomas – 2021 UT App – contempt, modification of custody

Thomas v. Thomas – 2021 UT App

2021 UT App 8
THE UTAH COURT OF APPEALS
JEREMY THOMAS, Appellant,
v.
JODY TASKER THOMAS, Appellee.
Opinion
No. 20190242-CA
Filed January 22,2021
Fourth District Court, Nephi Department
The Honorable Anthony L. Howell
No. 114600077
Rosemond G. Blakelock and Megan P. Blakelock, Attorneys for Appellant
Todd F. Anderson, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:

¶1        Jeremy Thomas appeals the district court’s order following a January 10, 2019 hearing, in which it held him in contempt and imposed various sanctions. We affirm but remand for a calculation of fees and costs on appeal.

BACKGROUND

¶2        Jeremy and Jody Tasker Thomas were divorced in 2013. The parties have two children: Son and Daughter. The divorce decree provided that during the school year, Jeremy would have primary custody of Son and Jody would have primary custody of Daughter. The parties were to share joint physical custody of the children during the summer. Since their divorce, the parties have had numerous conflicts regarding the children, which ultimately led the parties to stipulate to appointment of a special master to help them resolve their parenting disputes. With respect to establishing an order governing the special master’s authority (Order Appointing Special Master), the parties stipulated to use the “standard Special Master Order as used by Jay Jensen or Sandra Dredge.”[1]

¶3        The special master issued numerous orders in the years following his appointment. For example, he issued orders governing the children’s communication and cell phone use during parent-time and requiring both the parents and children to participate in therapy. He also issued orders outlining procedures for exchanges for parent-time that were intended to minimize conflict and prevent the children from defying the parent-time schedule.

¶4        Four years after the decree was entered, Jody filed a motion for order to show cause in which she alleged that Jeremy had violated various provisions of the parties’ divorce decree and the special master’s orders. These allegations revolved around one primary issue: that Jody believed Jeremy was alienating the children from her by speaking “derogatorily or disparagingly” about Jody, “[p]utting the children in the middle,” “discussing adult issues with the children,” and denying her parent-time.

¶5        The district court held a hearing on Jody’s motion for order to show cause, as well as various other pending motions, in November 2017. With respect to Jody’s motion, the court found that Jeremy was “using the teenager[s’] busy schedules as a way to triangulate animosity and contempt of the children against their mother,” that his actions made Jody out to be the “bad guy,” and that he had “shown a continued pattern towards alienating the love and affection of the children towards” Jody. The court also found that Jeremy had not complied with an order of the special master that he “engage in individual therapy.”

¶6        Based on these findings, the court concluded that Jeremy had violated provisions of the divorce decree as well as “multiple orders of the Special Master,” that Jeremy knew of the orders, that he had the ability to comply, and that he willfully refused to do so. As a result, the court found him in contempt and ordered sanctions of thirty days incarceration in county jail, suspension of any licenses issued by the state, and a $1,000 fine (the First Contempt Order). However, the court stayed the sanctions and gave Jeremy an opportunity to purge the contempt by doing four things: (1) “fully comply[ing] with the Special Master order(s) regarding counseling”; (2) “mak[ing] progress regarding his alienation of the children”; (3) “provid[ing] necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) paying Jody’s attorney fees and costs relating to several motions. The court then set the matter for further review. At the subsequent hearing, the court did not consider whether Jeremy had purged his contempt, but it ordered Jeremy:

  1. To strictly comply with the Custody order.
  2. To make no alterations or changes to the custody order without the prior agreement of [Jody].
  3. To compel the children to comply with the custody order, and to do so without any further alienation of the children.
  4. To not schedule or allow to be scheduled any activity with the children in conflict with the custody order.
  5. To not allow [Son’s] sports and motocross to interfere with [Jody’s] visitation without [Jody’s] agreement to a trade.
  6. To compel [Son] to comply with the custody order.
  7. To not allow the children to refuse to comply with the custody order.

¶7        As the year progressed, tensions between the parties continued. Several contentious issues arose relating to exchanges of the children, in which Jeremy “fail[ed] to ensure the children attend parent-time.” Although Jeremy would take the children to the exchange location, the children would refuse to go with Jody, and Jeremy would then allow them to go home with him. Additionally, when conflicts arose between Son’s extracurricular activities and his parent-time with Jody, Jeremy left it to Son to coordinate scheduling changes and make-up time with Jody, putting the full responsibility of disappointing Son on Jody if changes to the schedule could not be arranged.

¶8 Then, at some point in the summer of 2018, Daughter hatched a plan that would allow her to move in with Jeremy during the school year. She informed Jeremy that Jody had given her permission to register for school in Jeremy’s district. Without verifying this information with Jody, Jeremy went to the school and pre-registered Daughter to attend school where he lived. When it became apparent that Jody had not given permission for Daughter to change schools, Daughter “refused to go to school for a considerable time” in the hope that “if [she] didn’t go to school, they’d let [her] go to [her] dad’s.” Additionally, Daughter made attempts to harm Jody, which culminated in Daughter being placed in juvenile detention and referred to the Utah Juvenile Court system.

¶9        Jody filed another motion for order to show cause in December 2018, in which she alleged that Jeremy had failed to purge his contempt and that he should additionally be held in contempt for failing to obey a subpoena and for violating numerous orders of the court and special master. The district court held an evidentiary hearing on the motion on January 10, 2019, and again found Jeremy in contempt (the Second Contempt Order). In light of the voluminous evidence relating to Jeremy’s alienation of the children submitted to the court at that hearing and throughout the pendency of the case, the court made findings regarding anecdotal incidents that it believed were representative of the alienating behavior.

¶10 First, the court recited text messages from an incident in February 2018 in which Daughter refused to return to Jody’s home after parent-time with Jeremy and Jeremy supported her refusal. It then addressed an incident in July 2018 in which Jeremy “knew the children did not want to do” parent-time with Jody and “failed to do anything to encourage or ensure the children comply with [Jody’s] parent-time as required by the orders of the Court.” The court found that this conflict was “only one example of many where [Jeremy] failed to encourage and/or compel the children’s compliance with” Jody’s parent-time.

¶11      The court also made several findings regarding the school incident. The court found that either (1) Jeremy was lying to the court when he claimed Daughter told him Jody gave permission for her to “look at enrolling and attending school” in Jeremy’s district or (2) Daughter lied to Jeremy and Jeremy made no attempt to communicate with Jody to verify Daughter’s “unbelievable statement that she had [Jody’s] permission.” The court found that “as a result of [Jeremy’s] failure to act, [he] implanted the idea into [Daughter’s] mind that [he] was going to aid [her] in her plot to” live with Jeremy: “[T]he best-case scenario is that [Jeremy] was complicit with [Daughter’s] lies and plans. The worst-case scenario is that [Jeremy] helped [Daughter] orchestrate her plot and is lying to the Court.” The court found that Jeremy’s “willingness to allow [Daughter’s] defiance” was a “significant contributor” to her “pushing the envelope of her defiance” by “refusing to attend school for many weeks” and attempting to harm Jody.

¶12 Moreover, the court adopted as part of its order findings of fact submitted by the special master on December 18, 2018, and January 4, 2019. The special master found that although “there was an added measure of compliance” by Jeremy following the First Contempt Order, noncompliance escalated during the late summer and early fall of 2018 and Jeremy had “failed to demonstrate strict and consistent compliance with the custody order.” The special master’s findings went on to detail various incidents of parent-time conflicts and noncompliance by Jeremy, as well as how Jeremy’s failure to respond to the special master and comply with his orders had impeded the special master’s investigation of various incidents and allegations.

¶13 The special master also found that although Jeremy had attended ten sessions with his therapist following the First Contempt Order, he had not met with the therapist for the nine months prior to the January 2019 hearing. However, apart from observing that the therapist appeared not to have a full understanding of the situation, the court did not make additional findings regarding Father’s compliance with orders that he attend therapy.

¶14 The court determined that “the alienation of the children . . . is the most critical issue that the Court has taken into consideration.” It therefore found Jeremy “in continued contempt as [he] has failed to purge his contempt previously found, and also continued to violate the same orders,” including provisions of the divorce decree regarding alienation and putting the children in the middle, as well as “multiple orders of the Special Master.”

¶15      As a result of its contempt findings, the court ordered the following sanctions: (1) that Jeremy pay all Jody’s attorney fees and costs “incurred in relation to this case and her difficulty in co-parenting since February 3, 2018”; (2) that Jeremy pay all the special master “fees and costs incurred since November 14, 2017”; (3) that Jeremy pay for “all uninsured costs of counseling for the parties’ minor children” as well as for individual treatment for Jody and Jeremy with the family counselor; (4) that all parent-time and communication between Jeremy and Daughter be supervised until the special master makes findings that the alienation issues have been sufficiently addressed; (5) that custody of Son be changed from Jeremy to Jody and all parent-time and communication between Jeremy and Son be supervised; and (6) that the stay on two days of the thirty-day jail sentence imposed in the previous contempt order be lifted and that Jeremy serve those two days in the Juab County Jail. However, the court stayed the sanction changing custody and instituting supervised parent-time of Son conditioned on Son strictly complying with court-ordered parent-time and Jeremy showing “a good faith effort to ensure that the minor children are repairing their relationships with [Jody].”

¶16 Custody of Son never actually changed, and the parties reached a stipulation in July 2019 in which they agreed that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. Son turned eighteen in August 2020.

¶17 Jeremy now challenges the Second Contempt Order on appeal.

ISSUES AND STANDARDS OF REVIEW

¶18      First, Jeremy claims that the district court violated rule 53 of the Utah Rules of Civil Procedure by treating the special master’s orders as orders of the court, the violation of which could justify a contempt finding. “The proper interpretation of a rule of procedure is a question of law, and we review the trial court’s decision for correctness.” American Interstate Mortgage Corp. v. Edwards, 2002 UT App 16, ¶ 10, 41 P.3d 1142 (quotation simplified).

¶19      Second, Jeremy raises several issues relating to the district court’s contempt findings and sanctions: (1) that the court exceeded its discretion in concluding that he had not purged his prior contempt found in the First Contempt Order, (2) that the court exceeded its discretion in finding him in further contempt of the court’s orders, (3) that the court lacked authority to change the custody of Son as a sanction for his contempt when no petition to modify was pending in the case, and (4) that other sanctions were inappropriate. “An order relating to contempt of court is a matter that rests within the sound discretion of the trial court.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d 539. Moreover, “we overturn a sanction only in cases evidencing a clear abuse of discretion.” Chaparro v. Torero, 2018 UT App 181, ¶ 20, 436 P.3d 339 (quotation simplified). “An abuse of discretion may be demonstrated by showing that the district court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court’s ruling.” Id. (quotation simplified).

ANALYSIS

  1. Special Master Orders

¶20 Rule 53 of the Utah Rules of Civil Procedure states that “[a]ny or all of the issues in an action may be referred by the court to a master upon the written consent of the parties.” Utah R. Civ. P. 53(a). Regarding the powers of a special master, the rule states that “[t]he order of reference to the master may specify or limit [the master’s] powers.” Id. R. 53(c).

¶21      A special master was appointed in this case based on the parties’ stipulation, in which they agreed to give the master authority in accordance with “[t]he standard Special Master Order as used by Jay Jensen or Sandra Dredge.” The Order Appointing Special Master grants the special master authority to issue “directives” regarding numerous specified issues such as scheduling, communication, and therapy and specifies that these directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The Order Appointing Special Master also grants the special master the authority to issue “recommendations” on other specified issues, such as significant changes to parent-time or conflicts on fundamental parenting decisions relating to healthcare, religion, and education. It states that recommendations—unlike directives—do not become court orders unless and until the district court adopts them.

¶22 Jeremy first asserts that the district court erred in determining that “all the Special Master ‘Orders’ issued” as of the January 10, 2019 hearing “are ‘directives’” under the Order Appointing Special Master, because the court did not “examin[e] the subject matter contained in each pleading the Special Master filed.” However, Jeremy provides no support for his assertion that the district court did not examine the subject matter of the individual special master orders. Further, he makes no attempt to point us to orders that should have been considered recommendations rather than directives. Thus, he has not adequately briefed his claim that the district court erred in classifying all the prior special master orders as directives. See State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶23 Jeremy further asserts that even if the special master orders were directives, they could not have become effective until the district court acknowledged them as such in its Second Contempt Order. But this position is contrary to the plain language of the Order Appointing Special Master, which states that directives “are effective as orders when made and . . . continue in effect unless modified or set aside by a court of competent jurisdiction.” The court’s acknowledgment that the special master orders were directives is not the event that made them effective. They were effective and binding at the time the special master issued them, in accordance with the Order Appointing Special Master.

¶24 To the extent that Jeremy challenges the special master’s authority to make binding directives under rule 53, such a challenge was previously foreclosed by this court in Wight v. Wight, 2011 UT App 424, 268 P.3d 861, in which we rejected a similar argument challenging a district court’s ability to grant a special master limited power under rule 53 to make binding decisions on specific issues. Id. ¶ 16. While rule 53 does not directly give the special master authority to make binding directives, it gives the court the ability to “specify or limit” the special master’s powers in the Order Appointing Special Master. See Utah R. Civ. P. 53(c). The parties in this case stipulated to the appointment of the special master and to the Order Appointing Special Master that would be used. The grant of limited decision-making power in an Order Appointing Special Master is permitted under the “considerable discretion” rule 53 grants district courts in using a special master. See Wight, 2011 UT App 424, ¶ 16. Thus, the court’s acknowledgment of the binding nature of the special master’s directives in this case is not contrary to rule 53. As in Wight, “nothing in the [Order Appointing Special Master] limited either party’s ability to challenge the decisions of the special master by filing objections with the trial court.” Id. But unless and until such an objection was made and ruled on, the special master’s directives were “effective as orders” under the Order Appointing Special Master.

¶25      And while Jeremy asserts that his due process rights were violated when the court treated the directives as orders of the court and held him in contempt for violating them, he has failed to explain why. “At its core, the due process guarantee is twofold—reasonable notice and an opportunity to be heard.” In re adoption of B.Y., 2015 UT 67, ¶ 16, 356 P.3d 1215. Jeremy does not assert that he lacked notice of the orders of the special master. Moreover, given that the orders were directives—a finding that Jeremy has failed to adequately challenge, see supra ¶ 22—and that the Order Appointing Special Master clearly informed Jeremy that directives are binding when issued, he should have known that he was required to comply with them. Further, the Order Appointing Special Master gave Jeremy an opportunity to present any grievances regarding the special master’s orders to the court by means of an objection. He does not assert that he was somehow precluded from objecting to the special master’s orders in the manner prescribed by the Order Appointing Special Master. Therefore, we find no merit in Jeremy’s claim that the district court violated his due process rights in holding him accountable for failing to comply with the special master’s orders.[2]

II. Contempt Finding and Sanctions

¶26 Next, Jeremy raises several challenges to the district court’s contempt findings and sanctions. We address each in turn.

A. Failure to Purge Contempt

¶27 Jeremy first asserts that the court exceeded its discretion in finding that he had not purged his prior contempt, claiming that its findings were not supported by the evidence. To purge his contempt, Jeremy was required to do the following four things: (1) “fully comply with the Special Master order(s) regarding counseling”; (2) “make progress regarding his alienation of the children”; (3) “provide necessary releases for [his therapist] to provide regular reports to the Special Master and [Jody] regarding [Jeremy’s] progress”; and (4) pay Jody specific attorney fees and costs.

¶28 Jeremy asserts that the district court did not make appropriate findings regarding whether he had purged his contempt. As to the first, third, and fourth requirements imposed by the court, we agree that the district court did not clearly address Jeremy’s compliance.[3] However, that fact does not undermine the court’s determination that Jeremy had not purged his contempt. To purge the contempt, Jeremy was required to comply with all four of the requirements. Thus, his failure on even one of the requirements would support a determination that he had not purged his contempt.

¶29 The court made extensive findings regarding Jeremy’s failure to comply with the second requirement—that he make progress on his alienation of the children. Indeed, the court observed that “alienation of the children . . . is the most critical issue that the Court has taken into consideration” in concluding that Jeremy had “failed to purge his contempt.” The court’s findings regarding alienation were extensive and included detailed recitals of the events relating to contentious exchanges in February and July 2018, as well as the events relating to Jeremy’s support of Daughter’s scheme to change schools. Further, the court adopted the special master’s findings, which recited additional instances of parent-time interference and found that Jeremy had “not made consistent progress with the issues of alienation” and, despite “greater compliance and progress” initially following the First Contempt Order, had “fallen into old patterns, continuing to impact the children’s relationship with” Jody.

¶30 Jeremy does not assert that the evidence could not support these findings but instead reargues the evidence, relying solely on the testimony of his own therapist that Jeremy’s progress on alienation issues had been “very good.” But the district court discredited this testimony as unreliable because it believed that, “whether intentionally or unintentionally,” Jeremy had given the therapist “a grossly distorted history of this case,” so the therapist did “not have an understanding of what is actually going on.”[4] Further, the court made extensive findings concerning events that demonstrated Jeremy had not made progress on alienation issues. The underlying evidence supports these findings, and in turn, the findings support the district court’s determination that Jeremy had failed to purge his contempt.

B. Additional Contempt

¶31 Jeremy also asserts that he should not have been held in further contempt, but his arguments in support of this assertion lack merit.

¶32      To find someone in contempt, a court must find “that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). Here, the court found all three of these elements. Jeremy does not directly challenge the court’s findings on these elements[5] but raises related issues that he claims precluded the court from finding him in contempt.

¶33      First, he takes issue with a statement the court made in its findings about a conflict between the parties over a trip to England that had occurred prior to the First Contempt Order. The court’s findings regarding alienation in the Second Contempt Order stated that it had “identified, with specificity, three circumstances that are not the only examples, but typify the behavior [Jeremy] has engaged in that encourages alienation between the minor children and [Jody].” The court then follows this introduction with the statement, “First, during the course of the evidentiary hearing, in the Court’s questioning of [Jeremy], the Court brought up the previous canceled trip to England and the findings the Court made regarding that event.” Jeremy asserts that it was inappropriate for the court to rely on incidents relating to the England trip to find him in further contempt because those events occurred before the First Contempt Order.

¶34 Admittedly, the inclusion of this statement here is somewhat confusing. Subparagraphs underneath this statement in the court’s order proceed to recite the details of the February 2018 parent-time incident and do not again refer to the England trip. In fact, the court does not mention or discuss the England trip beyond the above-quoted language. Moreover, the court goes on to discuss three distinct incidents, apart from the England trip, as examples of Jeremy’s alienating behavior—the February 2018 incident, the July 2018 incident, and the incident involving Daughter’s schooling.

¶35 Given the complete lack of any further discussion of the England trip and the fact that the court indicated its intent to discuss “three circumstances” that typified Jeremy’s behavior, we are inclined to believe that the statement about the England trip was misplaced and that it was the other three incidents, discussed in more detail, that formed the basis of the court’s contempt finding. The court made no findings or conclusions relating to the England trip but merely mentioned that it had questioned Jeremy about it. And the other three incidents, in addition to the other incidents identified in the special master’s findings, which the court adopted as part of the Second Contempt Order, provided ample support for the district court’s contempt finding. Thus, there is no indication in the Second Contempt Order that the court actually placed any weight on the England trip incident when finding Jeremy in further contempt.

¶36 Second, Jeremy asserts that the court’s findings improperly relied on certain affidavit evidence provided by Jody that he claims was not appropriately admitted. However, any error by the court in considering that evidence was invited when Jeremy indicated that he had no objection to the court considering affidavits “in lieu of direct testimony, so long as the party is then available for cross examination.” See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366 (“A party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” (quotation simplified)). Furthermore, at the evidentiary hearing, Jody reaffirmed the statements in her affidavit, and Jeremy took the opportunity to cross-examine her about them.

¶37 In short, we see no merit to any of Jeremy’s arguments challenging the basis for the court’s new findings of contempt. Indeed, the evidence of Jeremy’s alienating behavior was substantial, and the court’s findings were thorough. We do not hesitate to uphold the court’s additional contempt findings in the Second Contempt Order.

C. Change of Custody

¶38 Jeremy next argues that the district court exceeded its discretion by awarding a change of custody of Son as a sanction for his contempt, particularly where no petition to modify was pending. However, this particular sanction was stayed, and the stay was never lifted. Instead, the court entered a new order, pursuant to the parties’ stipulation, in July 2019. This order declared that “[c]ustody of [Son] shall remain [with Jeremy] based on the recommendation of the Special Master, who believes that [Jeremy] has (as of the date of the signing of this Stipulation) been in sufficient compliance with” the conditions imposed by the court in the Second Contempt Order. The order went on to indicate that the parties’ stipulation “resolves any and all issues related to . . . custody of [Son].” Moreover, Son turned eighteen in August 2020 and is therefore no longer subject to the jurisdiction of the court. See generally Utah Code Ann. § 15-2-1 (LexisNexis 2013) (“The period of minority extends . . . to the age of 18 years . . . .”); id. § 30-3-1(5)(d) (2019) (granting district courts jurisdiction over “the custody and maintenance of minor children” in a divorce).

¶39 Because the change-of-custody sanction was never implemented and Son is no longer subject to the jurisdiction of the court, we agree with Jody that this issue is moot. See State v. Steed, 2015 UT 76, ¶ 6, 357 P.3d 547 (“An argument is moot if the requested judicial relief cannot affect the rights of the litigants. In other words, an appeal is moot if the controversy is eliminated such that it renders the relief requested impossible or of no legal effect.” (quotation simplified)).

¶40      Jeremy nevertheless asks us to review this issue “because it is of wide concern, affects the public interest, is likely to recur, and yet evades review.” See Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1058 (Utah Ct. App. 1994). But this does not appear to us to be an accurate statement. Indeed, our court has previously addressed this very issue. See Chaparro v. Torero, 2018 UT App 181, ¶ 40, 436 P.3d 339 (“A district court cannot avoid making [best interests] findings by modifying custody arrangements as a sanction.”); see also Blanco v. Blanco, 311 P.3d 1170, 1175 (Nev. 2013) (en banc) (“A court may not use a change of custody as a sword to punish parental misconduct, such as refusal to obey lawful court orders, because the child’s best interest is paramount in such custody decisions.” (quotation simplified)), quoted in Chaparro, 2018 UT App 181, ¶ 40. Thus, the issue is clearly not one that evades review, and it is one on which we have already provided guidance. Accordingly, we decline to consider this moot issue.

D. Other Sanctions

¶41 Finally, Jeremy asserts that “all sanctions, including attorneys fees, supervised parent-time, and the change of custody should be reversed.” However, we reject his arguments on this point because they are inadequately briefed. State v. Thomas, 961 P.2d 299, 304 (Utah 1998) (“It is well established that a reviewing court will not address arguments that are not adequately briefed.”).

¶42 First, he asserts that attorney fees for “things such as charges on December 17, 2018 regarding mediation discussions with a mediator and charges on July 11, 2018 regarding a separate case involving a Lis Pendens” were unrelated to the order to show cause and therefore should not have been included in the sanctions. This is the extent of his argument. He makes no attempt to explain specifically why these charges were unrelated to the show cause motion or even to identify all the charges he is contesting. Jeremy’s limited analysis is inadequate to challenge the propriety of the attorney fees sanction, and we therefore decline to address his argument.

¶43 Apart from Jeremy’s minimal discussion regarding the propriety of the attorney fees, he does not challenge the appropriateness of the sanctions. Instead, his argument alleges that the court “failed to make the required findings with respect to contempt.” See generally Marsh v. Marsh, 1999 UT App 14, ¶ 10, 973 P.2d 988 (explaining that a court cannot hold someone in contempt unless it finds “from clear and convincing proof that the contemnor knew what was required, had the ability to comply, and willfully and knowingly failed and refused to do so” (quotation simplified)). But this argument, too, is inadequate. Jeremy makes two points: (1) that he could not have “willfully refused to allow [Daughter] to attend school” because he did not have custody of her and (2) that Jody “failed to submit any evidence of [his] contempt.”

¶44 The first argument is irrelevant because the school issue was not that Jeremy did not allow Daughter to attend but that he, at best, “was complicit with [Daughter’s] lies and plans” and, at worst, “helped [Daughter] orchestrate her plot” not to attend school and that his actions exemplified “the behavior [he] has engaged in that encourages alienation between the minor children and” Jody. Moreover, other instances of alienation supported the court’s decision to hold Jeremy in contempt for violating provisions of the divorce decree pertaining to alienation, so even if we agreed with him that the school incident could not support the contempt finding, his failure to specifically challenge the other findings supporting the contempt would preclude us from reversing the court’s decision. Cf. Gilbert v. Utah State Bar, 2016 UT 32, ¶ 24, 379 P.3d 1247 (“[We] will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.”). As to his second argument, we have already addressed and rejected it. See supra ¶ 36. Thus, we reject Jeremy’s challenge to the court’s contempt sanctions.

III. Attorney Fees

¶45      Jody requests her attorney fees and costs on appeal on the ground that she was awarded fees below. “The general rule is that when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Robertson’s Marine, Inc. v. I4 Solutions, Inc., 2010 UT App 9, ¶ 8, 223 P.3d 1141 (quotation simplified). Although there are exceptions to this general rule, see, e.g., Liston v. Liston, 2011 UT App 433, ¶ 27 n.6, 269 P.3d 169, Jeremy has not argued that any exception applies here. Thus, because Jody has prevailed on appeal, we grant her request for fees and costs on appeal and remand for the district court to calculate the award.

CONCLUSION

¶46 Neither the Order Appointing Special Master nor the court’s interpretation and application of that order violated rule 53 of the Utah Rules of Civil Procedure. Further, Jeremy has not adequately alleged any error or abuse of discretion in the court’s determination that he had failed to purge his prior contempt and that he had engaged in additional contemptuous acts. Jeremy’s challenge to the change-of-custody sanction is moot, and his challenges to the other sanctions are inadequately briefed. Because Jody has prevailed on appeal and was awarded fees below, she is also entitled to fees on appeal. Accordingly, we affirm the Second Contempt Order but remand for the district court to calculate an award of fees and costs to Jody on appeal.

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

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[1] Although details about Jay Jensen and Sandra Dredge are not found in the record, we take judicial notice, purely for the purpose of providing background information, that the former is a therapist and the latter an attorney. Both have practices in Utah County and have served as special masters in several domestic cases there.

[2] Even if we were persuaded that the court somehow erred in holding Jeremy in contempt based on the orders of the special master, it is unclear how that would alter the outcome of this case. The court’s contempt finding was not based solely on violations of the special master’s orders but rested in large part on his violation of those provisions of the divorce decree prohibiting alienation.

[3] The adopted findings of the special master did suggest that Jeremy had not “fully compl[ied] with the Special Master order(s) regarding counseling,” as he had not met with therapist for the nine months prior to the January 2019 hearing. However, the district court did not analyze Jeremy’s compliance with this mandate.

[4] Jeremy does not challenge the court’s determination that his therapist’s testimony was not credible but instead blames the special master and the district court for any distortion of the facts because the special master selected and the court appointed the therapist to function solely as an individual therapist for Jeremy and not to meet with other members of the family or evaluate the family as a whole. He asserts that if the therapist had been required to consult with others, the therapist would have had a fuller picture of the situation and that the lack of such consultation precluded Jeremy from complying with the court’s mandate that he make progress on his alienation issues. But even accepting Jeremy’s premise, these facts suggest only that the therapist’s lack of information from other sources might have limited his utility as a witness to Jeremy’s progress, not that Jeremy was precluded from making progress on his alienation issues. It was Jeremy who continued to make poor decisions by interfering with parent-time, supporting Daughter’s scheme to change schools, and generally undermining Jody. And it was Jeremy who, in meeting with the therapist, left out crucial information that could have helped the therapist better understand and help him with the alienation issues. The fact that Jeremy failed to make progress in spite of therapy does not come down to whether the special master or court ordered the therapist to meet with other individuals in the family. Ultimately, it was Jeremy’s responsibility to comply with the court’s order that he make progress on his alienation issues, and he failed to do so.

[5] Jeremy does attempt to challenge the court’s findings regarding the school incident, but he does so in the context of challenging the sanctions rather than in the context of challenging the contempt finding. In any event, we reject those arguments as discussed infra ¶ 44.

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An Honest Day’s Wages for an Honest Day’s Pay

An Honest Day’s Wages for an Honest Day’s Pay

Many professionals are encouraged to raise rates to the level that clients are willing to bear (and told this is the right thing to do), rather than charging what makes the professional’s services a true value for the client. It’s morally wrong and ultimately bad business to charge as much as the market will bear (it is not wrong to charge what your work/service is worth), but many professionals charge as much as they can get away with without even questioning why they do. If you are such a professional, ask yourself why you do that. Then repent and change.
Here’s an example of such a recommendation from a business consultant for attorneys. He’s not even trying to nuance or spin the idea:

Don’t Be Afraid to Raise Your Legal Fees

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

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Is it true that the first to file for divorce has to pay the other party’s lawyer fees?

Is it true that the first to file for divorce has to pay the other party’s lawyer fees?

No. Filing for divorce first does not obligate the filing party to pay the opposing party’s attorney fees.

Attorney’s fees are rarely awarded. Prevailing in the case does not automatically entitle the prevailing party to an award of attorney’s fees. Whether attorney’s fees are awarded is a matter left to the discretion of the judge.

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

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Paying by the Hour vs. Paying a Fixed (or Flat) Fee

Paying by the Hour vs. Paying a Fixed (or Flat) Fee

Let me see if I can help you make a smart decision when it comes to hiring a divorce lawyer.

Sometimes it’s difficult to know how to identify a good deal in a divorce lawyer because you have no experience in shopping for and paying for divorce lawyer services.

So let’s liken the process of shopping for a good value in legal services to something you’re more familiar with.

Car repair.

This is a good comparison.

Think of your lifestyle as your car. A car you’ve had a long time. It’s dependable. It makes you feel happy and secure. As a result, you take good care of your car.

But then something unexpected happens to your car. A problem arises that you didn’t expect, that you don’t fully understand, and that places the future of your car in question. Is it a matter of a simple and relatively inexpensive fix? Or is the problem or are the problem so complex and/or mysterious as to be very expensive just to analyze, let alone remedy?

What kind of mechanic you get, and the way you pay the mechanic, will depend upon your financial circumstances.

Paying by the hour has its advantages, and its disadvantages. When I pay by the hour I don’t know how much I’ll end up paying or how long I’ll be paying. If I’m dealing with somebody I don’t know, it’s hard, if not impossible, to know whether the person charging me by the hour is honest and fair.

If you’re like me, I usually pay my mechanics (people who have treated me well in whom I trust) by the hour because I know they won’t do any unnecessary work or try to stick me with any unnecessary charges. They’ll charge me for as many hours as it actually takes them to fix my problem. They’ll charge the only for the parts I really need. I realize that sometimes they may end up doing work that doesn’t solve the problem immediately because it helps them narrow down what the problem is. I understand that sometimes I might have to pay for the same part twice if the first part ordered doesn’t perform as expected.

Paying a flat fee may be you preference if you’ve saved up a rainy day fund, you may be inclined to ask the mechanic to quote you a flat fee or a fixed fee on the cost of repairs. You might ask for a flat fee so that you don’t have to worry about handing the mechanic a blank check to charge you by the hour or by the part. You like knowing in advance how much it’s going to cost, even if it going to cost a lot. You may even try to entice your mechanic into accepting a flat fee by explaining that the mechanic will receive that fee regardless of how long or how short a time it takes to perform the repairs. In these regards, a flat fee can be very appealing to both you and to your mechanic. But flat fees can be risky. So agreeing upon a flat fee between you and your mechanic is not an exact science, and will require to some extent a leap of faith on the part of both you and your mechanic. The mechanic does not know exactly what’s needed, and by agreeing to a fixed fee, could end up losing money on this deal if the problem is worse than he imagined, thus requiring far more work and/or materials than originally estimated. Then again, the problem may turn out to be much simpler than originally anticipated, resulting in that flat fee you thought was so advantageous obligating you to pay much more than you would have had you paid by the hour and the part. Quite often a flat fee is slightly higher than what it would cost if you paid by the hour because your mechanic wants to reduce as much as possible the risk of working at a loss.

Fair enough? You with me to this point?

I stopped billing clients by the hour back in 2013. That was the year when a client came to me telling me that he was happy with my work in that he felt he was getting a fair deal, but that he had a difficult time paying my fees every month because he never knew how much or how little they would be. Although my client’s struggle was obvious once he brought this to my attention, it had never occurred to me. Almost immediately I switched from billing by the hour to building on a flat fee basis. I now Bill $500 a week or $2000 a month, as the client prefers. I came to this number by taking the average cost of every divorce I never handled (both the contested and the uncontested) and dividing that by the average period of time divorces take. This way the client usually ends up paying the same amount of money the client would’ve paid me had the client been built by the hour. And while there are times when some clients pay more than they would have paid by the hour and some clients pay less than they would have paid by the hour, it evens out.

But some clients have an extraordinarily difficult time understanding this concept. “What if you don’t do $500 worth of work in a given week?” they ask. I explained that by comparing my flat fee system to the natural gas company’s flat fee “budget pay” program. Rather than having you pay $5 per month in the summer and $200 per month in the winter, your natural gas company has you pay $103 every month per year instead. This allows you to budget for your gas payments predictably throughout the year.

Unlike the natural gas company, however, I go one better. I charge $500 a week, but subject each weekly payment to a satisfaction or your money back, no questions asked, guarantee. The way it works? You pay me $500 in advance for the week ahead. After that week I come to you for the second week’s advance payment, but before I get paid for week two, I asked you if you are satisfied with the previous week’s services. If you say you want, the only question I ask you is how much of a refund due you want? And you may have up to all of the $500 you paid refunded. No questions asked. Even if you were more than satisfied with the work, you can claim you weren’t satisfied get all your money back. The reasons I do this, and the reasons I can do this are no secret. To reduce your fear and your risk as a client and to help earn your trust, I offer my satisfaction or your money back, no questions asked guarantee. This should make you confident that I’ll work hard to satisfy you, because if I don’t I won’t get paid for the services I performed. But this isn’t a one sided benefit. Because clients who know I do good work, but demand refunds anyway won’t have me as their lawyer much longer, which means they’ll have to turn to one of those despicable lawyers they had hoped to avoid. So this arrangement keeps the lawyer humble and honest, and the client humble and honest too.

And breaking down payments to your lawyer in weekly installments that are fully refundable each week, rather than requiring a hefty retainer up front, ensures that a client never overpays his or her lawyer. It also allows the client to pay as he or she goes. If the case ends up settling in just a few months, the client only pays for the work that was needed in that few months. If the case takes longer, the client understands from the beginning what it’s going to cost week to week until the trial ends.

Short of doing top-flight work for free, I really couldn’t think of anything more I could possibly do to make the client happier.

But still, some clients, being extremely skeptical and suspicious of lawyers (which I don’t blame them for being), think there’s a catch. There isn’t, but if they aren’t convinced by then, there’s really no convincing them ever.

And so for those clients, I started offering not merely a flat fee, but a lump sum flat fee. I understand the appeal of a lump sum flat fee to a client. One and done. Avoiding the pain of having to pay your lawyer every week or every month.

But if a client is going to request a lump sum flat fee, then the client has to understand that that flat fee has to cover all likely contingencies. I can’t remain a viable business if you ask me to accept $2,000 for a case that may end up lasting a year and a half before going to trial. Likewise, I understand your reluctance to pay me $36,000 or more only to have the case settle in three or four months of intense negotiation. So please understand if you’re going to insist upon paying a lump sum flat fee, that flat fee has to cover every possible contingency.

So if you insist on making one and only one lump sum payment, the average lump sum fee (the average, mind you—meaning it could be slightly less, could be slightly more) is $25,000.

If you want to pay a lump sum without having to prepare for trial because you believe your case will settle and never go to trial, the average lump sum fee is $10,000. If, to your surprise, you don’t settle, and want me to take the case to trial for you, the trial preparation and presentation fee is, on average, an additional $20,000.

Now I don’t want to impose my own principles and values on my clients. Not everyone thinks the same way I do. Not everyone thinks about money the same way I do. Every case is both unique and shares many common elements. My pricing practices seek to balance as much customization as possible with the efficiency and functionality of a standardized system.

My pricing takes into account my wants and needs, as well as the wants and needs clients use to guide their buying decisions. Understand that if you find my pricing to be outrageous, too complex or even too simple, that probably means you have never been in the market for my kind of services before. Regardless, I trust that this article has been transparent and that it has helped you understand the analysis and purposes behind my pricing, specifically my flat fee pricing.

If you find my approach to divorce and family law, and to the way I value and price legal services for a client, I invite you to meet with me to discuss what I can do for you within your budget.

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

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