Tag: Jones v. Jones

Myers v. Myers 2023 UT App 20 – Alimony Modification

Myers v. Myers 2023 UT App 20

2023 UT App 20


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


No. 20220002-CA

Filed March 2, 2023

Sixth District Court, Richfield Department

The Honorable Brody L. Keisel

No. 184600056

Benjamin L. Wilson, Attorney for Appellant

Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which



HARRIS, Judge:

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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


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


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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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


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



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

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

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


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

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

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

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

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Wellman v. Kawasaki – 2023 UT App 11 – Alimony

2023 UT App 11




No. 20210265-CA

Filed February 2, 2023

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

Mary Deiss Brown, Attorney for Appellant

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

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

HARRIS, Judge:

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


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

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

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

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

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

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

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

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

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


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


¶12      “Under Utah law, the primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Miner, 2021 UT App 77, ¶ 14 (quotation simplified). “The core function of alimony is therefore economic,” and “regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (quotation simplified).

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

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

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

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

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

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

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

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

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

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

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

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


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

¶26 Affirmed.


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

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

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2019 UT App 82 – Blocker v. Blocker – terminating supervised parent-time

2019 UT App 82 – Blocker v. Blocker



No. 20170167-CA
Filed May 16, 2019

Fourth District Court, Provo Department
The Honorable James R. Taylor

No. 024402553

Michael Phillip Blocker, Appellant Pro Se
Grant W. P. Morrison, Matthew G. Morrison, and
Justin T. Morrison, Attorneys for Appellee



¶1        We previously considered this case in Blocker v. Blocker (Blocker I), 2017 UT App 10, 391 P.3d 1051, and remanded it to the district court to enter findings of fact to support its ruling granting Kirsteen Didi Blocker (Mother) unsupervised parent-time with her now sixteen-and-a-half year old son (Child). Michael Phillip Blocker (Father) appeals the district court’s post-remand judgment. We affirm.


¶2        Mother and Father were married in 1997, separated just weeks after Child’s birth in 2002, and divorced in 2004. Mother and Father were awarded joint custody, with Child’s primary physical care and residence being with Mother. In response to Father’s petition to modify custody and concerned about the detrimental impact of Mother’s behavior on Child, the district court granted sole legal and physical custody to Father in 2010 (2010 Order). The district court ordered that Mother’s parent-time be supervised until she “changed her mind set with regard to her own parenting abilities and Father’s relationship with the child.” Blocker I, 2017 UT App 10, ¶ 4, 391 P.3d 1051 (cleaned up). But concerned that supervised parent-time would be impractical for financial reasons, the court permitted Mother to have unsupervised parent-time provided that she retain a special master and participate in individual therapy by herself and joint therapy with Child. Id. Until she verified compliance with these conditions, Mother’s parent-time remained supervised. Id.

¶3        In 2014, in response to Mother’s motion to modify the 2010 Order and based on a home study report, the district court temporarily granted Mother unsupervised parent-time. Id. ¶¶ 5–6. Nearly one year later, having received no other evidence or testimony, the court decided to make Mother’s unsupervised parent-time permanent without entering any findings of fact. Id. ¶ 7.

¶4        Father appealed, and we determined that the court had made its order granting unsupervised parent-time to Mother “permanent without explaining the basis for its decision.” Id. ¶ 16. Because the court modified the parent-time requirements without providing any findings, we concluded that we were unable to review its decision and remanded for more detailed findings. Id. ¶ 21.

¶5        Regarding the changed circumstances, on remand the district court made the following findings of fact: (1) Mother had continued professional therapy; (2) Mother and Mother’s father were maintaining a relationship with Child by going to Father’s house and being allowed to spend time with Child in their car, at the curbside, for about one hour, two to three times a week; (3) Father’s brother (Uncle) supervised visits between Mother and Child during the Thanksgiving and Christmas holidays without problems being noted; (4) Child was allowed to sit and visit with Mother and her family during a church Christmas program without incident; (5) Mother was allowed to speak by phone with Child two to three times per week; (6) Child was older when the district court modified parent-time; and (7) Child had received substantial therapy at the time the district court modified parent-time. The court also identified three circumstances that rendered the 2010 Order unenforceable: (1) the parties were unable to afford the cost of supervised exchanges, supervised visitation, or the services of a special master; (2) the therapist identified in the 2010 Order to oversee therapy of Mother and Child was no longer available; and (3) the agency assigned to supervise Mother’s parent-time in the 2010 Order was no longer in business in Mother’s geographical area.

¶6        Regarding Child’s best interest, the district court on remand noted that both parties “wished to reasonably accommodate a relationship between [Child] and [Mother].” The court explained that “curbside parent time . . . was not in the best interest of [Child]. He needed a more reasonable and less artificial opportunity to know his [Mother] and her family.”

¶7        The district court further described the process by which it granted Mother unsupervised parent-time. Because parent-time supervised by Uncle had been “successful and without incident,” the court concluded that Mother should be allowed to exercise unsupervised parent-time on a temporary basis. At the time the district court modified parent-time, Mother had been exercising unsupervised parent-time for nearly one year without any reported incidents. Although Father speculated that Mother was engaging in “parental alienation” during her parent-time, the court noted that Father offered no evidence to support this contention. The court concluded by pointing out, “[Child] was 6 years older and in spite of the curbside restrictions and other difficulties over the years, he and [Mother] had developed and continued to maintain a positive parent/child relationship.” And with regard to Mother, the court noted that she had “demonstrated an ability through the evaluation and her practice over several months to maintain a reasonable relationship with [Child].”[2] Thus, the court concluded that it was appropriate to “reconcile the now unenforceable 2010 Order and the current state of affairs” by allowing unsupervised parent-time as the means to “most effectively foster a continuing relationship” between Child and Mother. Father appeals.


¶8 The first issue on appeal is whether the district court erred when it determined that the unenforceability of the conditions for Mother to have unsupervised parent-time with Child constituted a material change in circumstances to support a modification of the parent-time arrangements in the 2010 Order. The second issue is whether the district court erred by not conducting a best interest analysis when it modified the parent-time conditions of the 2010 Order. Both issues share the same standard of review. “We review a district court’s decisions regarding parent-time for an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 8, 374 P.3d 45. “The district court’s proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement. Thus, we generally will not disturb the district court’s parent-time determination absent a showing that the district court has abused its discretion.” Stephens v. Stephens, 2018 UT App 196, ¶ 34, 437 P.3d 445 (cleaned up).


I. The Preclusion of Previously Disposed Arguments

¶9        With regard to the first issue, we note that the scope of our review of the district court’s post-remand ruling is limited by the mandate rule. “The mandate rule, a subset of the law of the case doctrine, binds both the district court and the parties to honor the mandate of the appellate court. Under this rule, the decisions of an appellate court become the law of the case and cannot be reconsidered on remand.” State v. Oliver, 2018 UT App 101, ¶ 29 n.8, 427 P.3d 495 (cleaned up); see also Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995) (“[T]he mandate rule[] dictates that pronouncements of an appellate court on legal issues in a case become the law of the case and must be followed in subsequent proceedings of that case.”). Furthermore, when this court disposes of an argument as inadequately briefed, “the law of the case doctrine precludes us from addressing this argument anew.” See NPEC LLC v. Miller, 2018 UT App 85, ¶ 9, 427 P.3d 357 (per curiam) (cleaned up).

¶10 Under the mandate rule, Father cannot re-litigate on remand issues we previously determined were inadequately briefed. But this is exactly what he does now. In this post-remand appeal, Father reintroduces a previously disposed issue by presenting two arguments in support of it.

¶11 First, he argues, “The district court abused its discretion when it used Mother’s inability to comply with the conditions [for unsupervised parent-time] in the initial Parent Time Order as a change in circumstances to justify modification of [Mother’s] parent time because those circumstances were not those upon which the earlier decision was based.” Next, Father argues, “[T]he district court abused its discretion in finding that [Mother’s] unwillingness to comply with a standing court order provided the basis for a change in circumstances sufficient to modify parent time as such rewards a noncompliant parent and incentivizes her to continue her noncompliant behavior.”

¶12 Similarly, in his previous appeal, Father argued, “The [district] court erred when it decided that [Mother’s] inability to comply with conditions for her unsupervised parent time constituted a material change in circumstances upon which to base a modification of a custody award.”[3] A panel of this court declined to address this issue because it was inadequately briefed. Blocker I, 2017 UT App 10, ¶ 18, 391 P.3d 1051.

¶13 Thus, in this post-remand appeal, Father raises essentially the same issue—namely, that the district court erred in concluding the unenforceability of the original parent-time conditions constituted a material change in circumstances—that he raised in his original appeal. But we have already declined to address this very issue in Father’s original appeal due to inadequate briefing. “In effect, [Father] now attempts to supplement the briefing submitted in his earlier appeal. The mandate rule bars such attempts.” See State v. MacNeill, 2016 UT App 177, ¶ 39, 380 P.3d 60. Therefore, we decline to reconsider this issue in Father’s post-remand appeal.

II. The Post-remand Judgment

¶14 The scope of the remand directed the district court to enter findings of fact showing that there had been a material change in circumstances necessary to support a change in the parent-time provisions. See Blocker I, 2017 UT App 10, ¶ 21, 391 P.3d 1051.

¶15 Modification of parent-time involves two separate steps. “First, the court must find that the petitioner has made some showing of change in circumstances that would support a modification of parent-time.” Stephens v. Stephens, 2018 UT App 196, ¶ 33, 437 P.3d 445 (cleaned up). “Second, the court must consider the changes in circumstance along with all other evidence relevant to the welfare or best interests of the child to determine de novo which custody arrangement will serve the welfare or best interest of the child, and modify, or refuse to modify, the decree accordingly.” Id. (cleaned up); see also Becker v. Becker, 694 P.2d 608, 611 (Utah 1984) (“[A] modification of visitation rights also requires a bifurcated procedure.”); Hogge v. Hogge, 649 P.2d 51, 54 (Utah 1982) (“A . . . two-step procedure should be followed where the petition to modify a custody decree requests a material change in visitation rights.”).

¶16 In the context of modifying parent-time, a material change of circumstances is a “different inquiry” from a material change regarding custody. Erickson v. Erickson, 2018 UT App 184, ¶ 16, 437 P.3d 370 (cleaned up). “When modifying parent-time, the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody.” Id. (cleaned up). Furthermore, in determining parent-time, “the [district] court gives highest priority to the welfare of the children over the desires of either parent. Such determinations are within the [district] court’s sound discretion.” Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct. App. 1998) (cleaned up).

¶17 Finally, “[t]he [district] court’s findings on remand must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on [each] factual issue was reached.” Jensen v. Jensen, 2000 UT App 213U, para. 8 (cleaned up); accord Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221; Shuman v. Shuman, 2017 UT App 192, ¶ 5, 406 P.3d 258. “Put another way, findings are adequate when they contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay, 2018 UT App 137, ¶ 19 (cleaned up). “This obligation facilitates meaningful appellate review and ensures the parties are informed of the [district] court’s reasoning.” Shuman, 2017 UT App 192, ¶ 5. Furthermore, the Utah Code requires the court to “enter the reasons underlying its order for parent-time.” Utah Code Ann. § 30-3-34(3) (LexisNexis Supp. 2018).[4]

¶18 Thus, on remand, the district court in this case had two tasks. First, it was to enter findings of fact to support its ruling modifying parent-time. Second, based on those findings, the district court needed to explain the process by which it concluded that eliminating supervised parent-time was in the best interest of Child. The district court completed both tasks in its post-remand decision.

¶19 First, the district court identified changed circumstances that supported its decision to modify parent-time. See supra ¶ 5. Most notable among these is that Mother and Child had received substantial therapy at the time of the modification, there had been no problems reported during Mother’s supervised parent-time, and Child was older and had grown in maturity. The 2010 Order stated that supervised parent-time was to continue “until such time that [Mother] demonstrates that she has changed her mind set with regard to her own parenting abilities and [Father’s] relationship with [Child].” Mother’s reception of therapy and the absence of reported problems are changed circumstances relative to the condition (that is, Mother’s uncooperative mind-set) that originally gave rise to the imposition of supervised parent-time. The court also noted that modification was necessary because the conditions (namely, the prohibitive costs associated with supervised parent-time, the unavailability of a joint therapist, and the demise of the original supervising agency) originally imposed for Mother’s unsupervised exercise of parent-time had so substantially changed as to make the 2010 Order unenforceable. By highlighting these changed circumstances, the district court made “some showing of a change in circumstances” necessary to modify parent-time. See Erickson, 2018 UT App 184, ¶ 16 (cleaned up).

¶20      Second, the district court explained the process by which it concluded a modification in parent-time was needed to serve Child’s best interest. Given the unenforceability of the 2010 Order, the court noted that Uncle had been supervising Mother’s parent-time for a few months as of April 2014. Mother had exercised this parent-time without incident. The court also noted that, given the parties’ desire “to reasonably accommodate a relationship” between Child and Mother, “curbside parent time . . . was not in the best interest of [Child]” because “[Child] needed a more reasonable and less artificial opportunity to know his [Mother] and her family.” Thus, the court allowed Uncle to continue to supervise Mother’s parent-time on a temporary basis. And at the same time, the court ordered a home study. The case was set for further review after completion of the home study and continuation of parent-time supervised by Uncle. Four months later, after receiving the home study and hearing that supervised parent-time had been “successful and without incident,” the district court granted Mother unsupervised parent-time on a temporary basis. About a year later, the court determined that Mother had exercised unsupervised, statutory parent-time without incident, and it permanently granted her unsupervised parent-time. The court explained that granting Mother unsupervised parent-time was in Child’s best interest because “it would most effectively foster a continuing relationship” between Child and Mother.

¶21 “[District] courts have particularly broad discretion in ordering parent-time, and we will only intervene when the [district] court’s action is so flagrantly unjust as to constitute an abuse of discretion.” Jones v. Jones, 2016 UT App 94, ¶ 13, 374 P.3d 45 (cleaned up). “The best interests of a minor child are promoted by having the child respect and love both parents, which includes fostering a child’s relationship with the noncustodial parent.” Hanson v. Hanson, 2009 UT App 365, ¶ 3, 223 P.3d 456 (cleaned up); see also Jones, 2016 UT App 94, ¶ 14 (“The paramount concern in [parent-time] matters is the child’s welfare or best interest. Fostering a child’s relationship with the noncustodial parent has an important bearing on the child’s best interest.” (cleaned up)). Thus, the district court acted well within its broad discretion when it found that modifying Mother’s parent-time from supervised to unsupervised status was in Child’s best interest as the most effective means to “foster a continuing relationship” between Mother and Child.


¶22 We conclude that, upon remand, the district court properly entered findings of fact that were sufficiently detailed to identify the steps it took to modify Mother’s parent-time. We further conclude that the district court did not abuse its discretion in reaching the conclusion that unsupervised parent-time was in Child’s best interest.

¶23 Affirmed.

Utah Family Law, LC | | 801-466-9277


[1] The facts of this case are set out in further detail in the original appeal. See Blocker I, 2017 UT App 10, ¶¶ 2–7, 391 P.3d 1051.

[2] The district court had ordered and received a home study to determine if Mother was competent to have unsupervised parent-time with Child.

[3] The order of the district court giving rise to the original appeal was entitled “Order Modifying Custody.” In fact, that order modified only parent-time and did not disturb the underlying custody arrangement. Father repeated this error when, in the original appeal, he imprecisely referred to a “modification of custody” when he was actually arguing that the court erred in modifying parent-time.

[4] Because the statutory provision in effect at the relevant time does not differ in any material way from that now in effect, we cite the current version of the Utah Code.

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