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Why is child support and alimony rooted in revenge, power, and humiliation?

Why is child support and alimony rooted in revenge, power, and humiliation?

The full question was actually: “Why is child support and alimony rooted in revenge, power, control, and humiliation over the father instead of support for the child?”

This is a good question, but not because your question is based upon accurate information; your presumption that child support and alimony are rooted in revenge, power, control, and humiliation is not universally true in all cases.

There are certainly divorce and child custody cases that arise where a spouse’s request for alimony or a spouse’s or parent’s request for child support are unreasonably, even outrageously high and often based upon false claims of need and ability to pay.

But to suggest that the purposes of alimony are nothing other than revenge, control, and humiliation is simply not true. There are some situations where an ex-spouse (and men can receive alimony, not just women, even though the majority of alimony recipients are women) clearly needs and deserves some financial support from the ex-spouse. The purpose of alimony is to ensure that the ex-spouse awarded alimony in such a situation does not become a public charge, a welfare recipient.

Child support is an interesting subject because there is no one right way to set and implement child support policy. In some jurisdictions, child support is a fixed amount regardless of the number of overnights the children spend with each parent. In other jurisdictions, child support is based upon the child support payor’s income. Other jurisdictions calculate child support based upon the number of overnights the children spend with each parent and/or upon the income of both parents. Still other jurisdictions will consider a host of other factors. Regardless of what factors determine child support, the purpose of child support is essentially the same: to ensure the child’s needs and lifestyle are maintained as much as reasonably possible. Again, the purpose of child support, as is the case with alimony, is to provide support, not to punish or unduly burden or humiliate the payor.

That doesn’t mean that spouses, parents, and courts can’t run amok, with the results being crushingly unfair alimony and child support awards, even awards that are punitive in nature. It can and does happen on occasion, but it is, fortunately, the exception.

What arises more often than you might imagine, however, are alimony and/or child support awards that are based upon a belief that the payor’s ability to pay is far, far greater than it actually is. These poor (literally) payor’s find themselves burdened with a spousal support and/or child support obligation that leaves them with literally just a few hundred dollars per month to live on, after they have met their alimony and/or child support obligations. Such circumstances are grossly unfair but do arise sometimes. The best way to ensure that this does not happen to you is to provide the court with sufficient proof of your real income and/or your true income earning potential, so that it’s not left to the court’s imagination to determine. For some people proving one’s true income or ability to earn is easier said than done, but it is well worth the effort if it means that the court does not stick you with an alimony and/or child support obligation you cannot bear.

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

https://www.quora.com/Why-is-child-support-and-alimony-rooted-in-revenge-power-control-and-humiliation-over-the-father-instead-of-support-for-the-child/answer/Eric-Johnson-311

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If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, why won’t the judge interview the child?

 

This post is the seventh in series of 15 posts on the subject of custody evaluations and the appointment of guardians ad litem (“GALs” for short) in Utah child custody cases when the judge could simply interview the children instead. You do not have to read all 16 posts to benefit from this series. Read as many or as few as you wish.

 

The purpose of this series is to make the case for the proposition that an interview by the judge is a faster, more accurate, more particular, more reliable, and less expensive form of evidence than what a GAL and/or custody evaluator provides.

 

I respectfully submit that claiming a child will know or “feel” a painful or harmful difference between an interview conducted by a judge as opposed to an interview by a GAL and/or custody evaluator is patently without merit. There is no independently verifiable proof for the claim that a judge interviewing a child on the subject of child custody issues inherently harms a child or exposes a child to a risk of harm. And when you think about, the very idea that a judge talking to a child will cause the child some kind of unwarranted harm—if indeed any real harm at all—is silly on its face.

 

If everyone agrees that the judge needs to know what the child is experiencing, observing, and feeling, what concerns the child, and what the child’s opinions and desires are, the idea that the best way to do this is through an interview by anyone but the judge is as absurd as it is counterproductive. Worse, to suggest that a guardian ad litem (who got literally a few hours of training in a hotel ballroom seminar and YouTube) or mental health professional thousands of dollars and take weeks or months to provide a milquetoast report and recommendations is indefensible.

 

You may ask why custody evaluators analyses and recommendations are usually so vague and timid. It’s a fair and crucial question. It’s out of fear of being reported to DOPL or sued for malpractice by the parent against whom the evaluator may make adverse recommendations. Knowing this, it is impossible to justify why so many judges and lawyers are so resistant to a judge conducting the interview of the child directly and on the record.

 

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

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

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

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

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

STANDARDS OF REVIEW

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

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

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

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

ANALYSIS
I. Alimony

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

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

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

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

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

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

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

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

A. The Marital Standard of Living

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

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

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

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

B. Lori’s Earning Capacity

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

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

¶21      In support of his position, Todd relies on Utah caselaw stating that “when determining an alimony award, it is appropriate and necessary for [district] courts to consider all sources of income.” Hansen v. Hansen, 2014 UT App 96, ¶ 14, 325 P.3d 864 (cleaned up). It is correct that district courts “must be able to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source—overtime, second job, self-employment, etc., as well as unearned income.” Crompton, 888 P.2d at 689. But while this caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received by a spouse for that purpose. Rather, we read this caselaw as preserving a district court’s broad discretion to treat sources of income as the court sees fit under the circumstances. See Griffith, 1999 UT 78, ¶ 19; Busche, 2012 UT App 16, ¶ 31.

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

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

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

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

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

C. Lori’s Needs

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

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

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

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

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

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

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

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

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

2. Sufficiency of the Evidence

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

3. Adequacy of the Findings

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

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

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

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

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

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

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

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

D. Todd’s Ability to Provide Support

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

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

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

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

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

E. The Parties’ Line-Item Monthly Expenses

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

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

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

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

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

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

II. Attorney Fees

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

A. The District Court’s Award of Attorney Fees

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

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

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

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

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

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

B. Attorney Fees on Appeal

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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2019 UT App 83 – Nave Free v. Free – modification of child support

2019 UT App 83 – Nave Free v. Free

THE UTAH COURT OF APPEALS

LINDA LEE NAVE-FREE, Appellee,

WENLOCK DUANE FREE JR., Appellant.

Opinion
No. 20170751-CA
Filed May 16, 2019

Fourth District Court, Heber Department
The Honorable Jennifer A. Brown

No. 134500083

Russell W. Hartvigsen, Attorney for Appellant
Aaron D. Banks, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

MORTENSEN, Judge:

¶1        After nearly twenty-five years of marriage, Wenlock Duane Free Jr. (Husband) and Linda Lee Nave-Free (Wife) divorced. They agreed to a division of their assets and an upward deviation in the amount of child support based on the medical needs of two of their children. Wife eventually remarried and began renting out a house she was awarded in the divorce. Alleging a substantial change in material circumstances, Husband petitioned to modify the amount of child support he was required to pay. The trial court denied the petition, and Husband appeals. We affirm.

BACKGROUND

¶2        Wife and Husband were married in 1990 and had four children together. They separated in 2012 and divorced in August 2013. The parties did not use attorneys in their divorce negotiations. Pursuant to the divorce decree, Wife was awarded a house in Heber City, Utah, and Husband received a house in Pleasant Grove, Utah. Frequent flier miles and the proceeds of a sale of land in Eureka, Utah, were to be divided equally. Wife also received $24,050 as compensation for any interest she might have in business ventures developed during the course of the marriage.

¶3        The parties agreed that Wife was to receive $7,629 per month as support for the three minor children. The amount decreased to $6,586 per month when the first child reached eighteen years of age. See Utah Code Ann. § 78B-12-219 (LexisNexis 2018).[1] The amount further decreased to $5,043 per month when the second child reached eighteen, and it was to remain at that amount until April 2023. The amount of child support represented an upward deviation of about $4,558 per month from the guidelines. At the time of the divorce, the parties agreed that the “increased amount [was] based on the ongoing medical needs of two of the children born to this marriage. Both parties . . . determined this amount to be fair and necessary.”[2] At trial, Wife clarified that the increased amount was designated for the “medical needs” of the two children in a broad sense, eclipsing actual expenses:

[The deviated amount allowed Husband] to go and do his thing, and I needed to maintain raising and taking care of the children, medical needs, corresponding doctor’s appointments . . . and accommodating . . . raising children, which then therefore entailed me not having the right to go and pursue a career where I could . . . travel and earn more money. . . . [I]t was so that I would create a home base, so that I would have a solid foundation for these kids. Be there. Raise them. Create that sense of family. You know, and not put my career first, but put my children first.

¶4        In November 2014, Husband filed a petition to modify the divorce decree, alleging that substantial changes merited an adjustment in the amount of child support he was required to pay. Specifically, he argued that Wife’s income had substantially increased because she had remarried and moved out of the house in Heber City and subsequently received rental income from that property.[3] Husband contended that, by this move, Wife had “voluntarily completely changed her circumstances and those of the parties’ minor children.” Husband testified that his income had “gone down just slightly” since the divorce decree was entered.

¶5        At trial, in addition to arguing that Wife’s income and relative wealth had substantially increased, Husband asserted that the medical expenses of the two oldest children had substantially changed. To support his claim of a substantial change in the medical needs of the children, Husband offered evidence that Wife’s out-of-pocket expenses relating to the children’s medical needs had decreased.

¶6        The trial court determined that there had been no material changes in Wife’s income or in her relative wealth. Regarding the amount of child support, the trial court concluded that the deviated amount was “compensation for the ongoing medical needs of the two oldest children and compensation for the marital estate acquired over 23 years of marriage.”[4] The trial court, having concluded that there had been no substantial changes, denied Husband’s petition. It further awarded attorney fees to Wife as the prevailing party. Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶7        The first issue on appeal is whether the trial court erred in determining Wife had not benefited from a substantial change in income when she started receiving rental income after the divorce. The second issue is whether the trial court erred when it determined that Wife had not experienced a material change in relative wealth when she remarried after the divorce and began living in a two-income home. The third issue is whether the trial court erred when it concluded that there had been no substantial changes in the medical needs of the children to warrant a modification of child support.[5]

¶8        These three issues share a common standard of review. “We generally review a [trial] court’s determination to modify or not to modify a divorce decree for an abuse of discretion. However, we review for correctness any challenges to the legal adequacy of findings of fact or to the legal accuracy of the [trial] court’s statements underlying such a determination.” Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882 (cleaned up). Furthermore, a trial “court’s determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [trial] court abused its discretion.” Earhart v. Earhart, 2015 UT App 308, ¶ 5, 365 P.3d 719.

ANALYSIS

I. Change in Wife’s Income

¶9        Husband’s primary contention is that because Wife’s income substantially increased, the amount of child support should be adjusted in his favor. The Utah Child Support Act (Act), see generally Utah Code Ann. §§ 78B-12-101 to -403 (LexisNexis 2018), allows a parent to petition the court to adjust the amount of child support for, among other circumstances, “material changes of 30% or more in the income of a parent,” id. § 78B-12-210(9)(b)(iii). “However, to succeed on a petition to modify, the moving party must first show that a substantial material change of circumstance has occurred since the entry of the decree and second, that the change was not contemplated in the decree itself.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). Because Husband has failed to show that a material change has occurred, we limit our analysis to the first prong.

¶10      “An appellant [who] fails to devote adequate attention to an issue is almost certainly going to fail to meet [his] burden of persuasion.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 13, 391 P.3d 196. In this regard, Husband “must cite the legal authority on which [his] argument is based and then provide reasoned analysis of how that authority should apply in the particular case, including citations to the record where appropriate.” Id. “[Husband] cannot carry [his] burden by simply listing or rehashing the evidence and arguments [he] presented during trial.” Taft v. Taft, 2016 UT App 135, ¶ 43, 379 P.3d 890. Nor can he “persuasively carry [his] burden by merely pointing to evidence that might have supported findings more favorable to [him]; rather, [Husband] must identify flaws in the evidence relied on by the trial court that rendered the trial court’s reliance on it, and the findings resulting from it, clearly erroneous.” Id.; accord Shuman v. Shuman, 2017 UT App 192, ¶ 8, 406 P.3d 258. Thus, Husband “has the burden of showing a substantial change in circumstances. It is insufficient to show that there has been some change, without a showing that such change was substantial.” Diener, 2004 UT App 314, ¶ 7 (cleaned up). Under this standard, Husband has failed to carry his burden of persuasion.

¶11 Husband contends that “[i]t is undisputed that Wife’s income increased by more than 40% from the time of the decree of divorce to the time the petition to modify was filed.” But a 40% increase in income is undisputed only if one buys into Husband’s flawed logic. Using Wife’s income at the time of the decree of divorce ($4,084 per month) as a base, Husband adds $1,750 per month of rental income from the house in Heber City, resulting in a monthly income of $5,834, a 43% increase in income. But Husband ignores a key fact in his ciphering: Wife’s income was only $3,000 per month at the time of the petition to modify.[6] Even if we credit $1,750 per month in rent as income, Wife made $4,750 per month at the time of the petition to modify, an increase of only 16% from her income at the time of the divorce.[7] Thus, Husband has failed to carry his burden of persuasion to show that Wife’s income has increased sufficiently (i.e., 30% or more) under section 78B-12-210(9)(b)(iii).[8]

II. Change in the Relative Wealth or Assets of the Parties

¶12 Next, Husband argues that Wife has had a change in relative wealth because she has remarried and now lives in a two-income household. The Act allows a parent to petition the court to adjust the amount of child support for “material changes in the relative wealth or assets of the parties.” Utah Code Ann. § 78B-12-210(9)(b)(ii) (LexisNexis 2018).

¶13 As with our analysis of the alleged material change in income, Husband “has the burden of showing a substantial change in circumstances” with respect to the parties’ relative wealth. Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (cleaned up). “It is insufficient to show that there has been some change, without a showing that such change was substantial.” Id. (cleaned up).

¶14 Husband has failed to carry his burden of persuasion because he has not established by evidence a change in relative wealth. Although Wife’s income has increased—if we include the rental income—from $4,084 to $4,750 per month, her monthly expenses, owing largely to a mortgage taken on the house in Heber City, have also increased. Husband testified that his income has slightly decreased. Far from a material change in the parties’ relative wealth, the evidence supports the conclusion that their relative wealth has remained roughly the same. Accordingly, Husband has also failed to carry his burden on this issue.

III. Change in the Medical Needs of the Children

¶15 Husband also contends that a change in the medical needs—as expressed in reduced expenses—of the two oldest children justifies a decrease in the amount of child support he owes. The Act allows a parent to petition the court to adjust the amount of child support for “material changes in the medical needs of the child.” Utah Code Ann. § 78B-12-210(9)(b)(v) (LexisNexis 2018). Husband’s contention here fails because he has not shown any change in the medical needs of the children.

¶16 The Child Support Obligation Worksheet stated, “The increased amount [of $7,629] is based on the ongoing medical needs of two of the children born to this marriage. Both parties have determined this amount to be fair and necessary.” This amount of child support was subsequently incorporated in the Decree of Divorce and Judgment. Thus, the parties’ own negotiations at the time of the divorce showed that the deviated amount was based on the medical needs, not the medical expenses, of the children.

¶17 “The primary objective of statutory interpretation is to ascertain the intent of the legislature. Since the best evidence of the legislature’s intent is the plain language of the statute itself, we look first to the plain language of the statute.” Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (cleaned up). “We therefore look first to the plain language of the statute, presuming that the legislature used each word advisedly, and when we can ascertain the intent of the legislature from the statutory terms alone, no other interpretive tools are needed, and our task of statutory construction is typically at an end.” Dole v. Dole, 2018 UT App 195, ¶ 15, 437 P.3d 464 (cleaned up).

¶18 Husband makes the fatal error of conflating medical expenses with medical needs. The two are conceptually distinct. If the legislature had wanted to use the word “expenses,” it would have done so. Instead the legislature allows a parent to petition to adjust child support based on changes to the medical “needs” of the child. Medical expenses refer to the actual cost of medical care. Medical needs concern underlying medical conditions. Obviously, a child’s medical needs will likely result in medical expenses, but the two are not necessarily equivalent. In a nutshell, medical needs are conditions attended to, while medical expenses are bills to be paid. See Hansen v. Hansen, 2009 UT App 152U, para 3 (“Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport her to doctor and counseling appointments, attend to her medical needs, and pay her medical expenses.”), aff’d, 2012 UT 9, 270 P.3d 531. Indeed, courts in other jurisdictions have recognized this distinction between medical needs and medical expenses. See In re Harrelson, 311 B.R. 618, 621 (Bankr. M.D. Fla. 2004) (“[A]lthough [debtor] has only minimal current medical expenses, her future medical needs are unknown.”); Poberesky v. Poberesky, 897 N.Y.S.2d 401, 402 (App. Div. 2010) (stating that “special medical needs” may require additional spousal support for “medical expenses or health insurance coverage”).

¶19 Husband does not address medical needs. Rather, he addresses only out-of-pocket medical costs. But a decline in Wife’s out-of-pocket expenditures for the medical treatment of her children is not necessarily evidence that the children’s overall medical needs have changed. The record contains no evidence, or even mere argument, that the underlying medical conditions—the needs—have improved. Husband asserts only that Wife’s out-of-pocket costs have declined. But this fact alone cannot carry the day for Husband, because it does not address the actual medical needs and conditions of the two oldest children.9 Indeed, Husband himself admitted at trial that the two oldest children’s medical conditions are serious and have not substantially changed since the time of divorce.10 Thus, Husband’s contention in this regard is without merit because he failed to show any material change in the children’s medical needs on which the upward deviation was premised.

IV. Attorney Fees

¶20 Because we affirm the trial court’s ruling, Wife remains entitled to the award of attorney fees she received in the proceedings below. Wife requests that she also be awarded her fees and costs on appeal when this court enters its affirmation of the trial court’s ruling. While not opining on the propriety of the trial court’s use of the “substantially prevailed” standard, a point not assailed on appeal, see supra note 5, as we have substantively affirmed all the trial court’s rulings appealed from, we award Wife attorney fees on appeal and remand to the trial court to calculate the reasonable amount of fees and costs she incurred in connection with this appeal.

In reality, it is likely that the medical expenses of the children have not changed either. What has changed is how those expenses are paid (e.g., private insurance, out-of-pocket, Medicaid).

In fact, Husband testified that he regarded the children’s medical conditions as “very severe.” Husband stated that he was unaware of a material change in the older son’s medical condition since the time of the divorce. Nor does Husband dispute that the younger of the two sons has a serious medical condition.

CONCLUSION

¶21      We conclude that the trial court properly determined that there had not been a substantial material change in Wife’s income, in the parties’ relative wealth, or in the medical needs of the children. Having affirmed the trial court’s decision, we also award Wife attorney fees incurred on appeal and remand for a determination of those fees.

¶22 Affirmed.

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

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[1] Because the statutory provisions in effect at the relevant time do not differ in any material way from those now in effect, we cite the current version of the Utah Code.

[2] The upward deviation was for the medical needs of the two oldest children, who were respectively twenty and seventeen years old at the time of the divorce decree, and not tied to their minority status. Indeed, the deviation continues until April 2023, long after both children are over eighteen years old.

[3] In his petition to modify, Husband alleged that Wife’s salary was $3,000 per month. And the trial court made a factual finding, not challenged on appeal, that Wife’s income in Wyoming was $3,000 per month. Wife’s income at the time of the divorce, as reported on the child support obligation worksheet, was $4,084 per month.

[4] While not material to the appeal here, in ruling on this matter the trial court noted that the upward deviation for child support was “in the nature of a property settlement” because, although it was to be paid in monthly installments, it was a “sum certain” and had a “specific date as to when the payments will end.” While noting our concern about the propriety of using child support as a means to facilitate property settlements, we decline to address whether this characterization of the child support here is accurate because this appeal can be completely resolved on the basis of the trial court’s conclusion that no material change of circumstances occurred. However, we note that, with regard to property settlements, “[s]tipulations entered into in contemplation of a divorce are conclusive and binding on the parties unless, upon timely notice and for good cause shown, relief is granted therefrom.” Bayles v. Bayles, 1999 UT App 128, ¶ 15, 981 P.2d 403 (cleaned up); see also Batty v. Batty, 2006 UT App 506, ¶ 2, 153 P.3d 827 (“[S]tipulations regarding property distribution . . . should be respected and given great weight.” (cleaned up)). Although stipulated agreements “may be perceived as paring back the role of the court as fact-finder, in most cases this result should be welcomed as an exercise entirely consistent with efficient and just judicial administration.” Batty, 2006 UT App 506, ¶ 2 (cleaned up).

[5] Husband asserts two other issues on appeal. First, he argues that the trial court failed to address certain issues raised at trial, specifically the division of frequent flyer miles and the transfer of marital real property in Eureka, Utah. In fact, the court did not overlook these issues, because it had previously addressed them in a contempt judgment against Husband. On appeal, Husband could have challenged the contempt judgment, but he did not do so. Thus, we decline to address issues related to the division of the frequent flyer miles and the property in Eureka.

Second, Husband contends that the trial court erred in its award of attorney fees to Wife, but the only argument Husband makes in this regard is the following syllogism: (a) the trial court’s fee award was grounded in the assumption that Wife substantially prevailed at trial; (b) according to Husband, he should have prevailed at trial; and therefore (c) he (and not Wife) should be awarded fees. Without opining on the propriety of the trial court’s use of the “substantially prevailed” standard to award fees in the first place, we reject Husband’s argument because we affirm the trial court’s substantive rulings, and therefore Husband’s minor premise fails.

[6] Husband does not dispute or challenge with evidence to the contrary the amount of Wife’s income when the petition to modify was filed. Indeed, Husband assigned $3,000 in monthly income to Wife in his petition to modify. Citing Utah Code section 78B-12-203 on appeal, Husband obliquely suggests that more income should be imputed to Wife. But he offers no argument and provides no evidence to support his position.

[7] Wife mortgaged the Heber City house to help pay for a house in Wyoming that she shares with her current husband. She testified that her monthly mortgage payment is about $2,200. The trial court noted that the income Wife received in rent was offset by expenses associated with the mortgage and maintenance of the Heber City house. Husband attacks this analysis, but we conclude it is not material to our decision, because even assuming no offset for the mortgage and maintenance, Husband still has not shown an increase in income of 30%.

[8] As a separate issue, Husband contends the trial court erred in not holding that Cantrell v. Cantrell, 2013 UT App 296, 323 P.3d 586, was applicable to this case. Husband asserts that Cantrell “is  not just instructive for this matter, but controlling case law on eerily similar facts.” Although Cantrell might be superficially similar to the present case, as the trial court pointed out, it is readily distinguishable. Unlike Cantrell, in this case (1) there is substantial evidence of the reason for the upward deviation; (2) the children and Wife were not living in the marital home at the time of the divorce; (3) Wife was not maintaining the same level of lifestyle but was forced to change her living circumstances in response to the loss of Husband’s income; and (4) Husband does not actively participate in his children’s lives.

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Hartvigsen v. Hartvigsen – 2018 UT App 238 – alimony, marital property

2018 UT App 238

THE UTAH COURT OF APPEALS

DANIELLE MARIE HARTVIGSEN,
Appellant,
v.
RICHARD MYERS HARTVIGSEN,
Appellee.

Opinion No. 20160069-CA
Filed December 28, 2018

Fourth District Court, Provo Department
The Honorable Lynn W. Davis
No. 064402132

Danielle Marie Hartvigsen, Appellant Pro Se[1]
Richard Myers Hartvigsen, Appellee Pro Se

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        This is an appeal from a district court’s division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen.[2] Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard’s unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.

BACKGROUND

¶2        Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1,000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.

ISSUES AND STANDARDS OF REVIEW

¶3        Danielle first argues that the district court’s alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We “review a district court’s alimony determination for an abuse of discretion” and will not disturb its alimony ruling “as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84 (quotation simplified).

¶4        Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard’s separate property. “Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity.” Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when “a clear and prejudicial abuse of discretion is demonstrated.” Id. (quotation simplified). In reviewing the district court’s decision, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court’s superior position from which to judge the credibility of witnesses.” Id. ¶ 121.

¶5        Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. “Generally, we afford trial judges wide latitude in granting or denying rule 59 motions . . . . Consequently, we generally disturb a trial court’s grant or denial of a rule 59 motion only if it constitutes an abuse of discretion.” Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pullham v. Kirsling, 2018 UT App 65, ¶ 38, 427 P.3d 261.

ANALYSIS
I. Alimony

¶6        Danielle first asserts that the district court’s alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs.[3]

However, in light of the supporting evidence and the district court’s articulated findings, Danielle’s various arguments fail to convince us that the court abused its discretion.

  1. Imputation of Income

¶7        Danielle first contends that “imputing income to [her] as a practicing attorney was an abuse of discretion” because she “had not worked as an attorney for nearly 19 years” and because “there was no competent evidence that a person with her experience could obtain employment as an attorney.”

¶8        In calculating an alimony award, a court must consider, among other things, the recipient’s ability to produce income. See Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2010)[4]. When an individual “has no recent work history or [his or her] occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40–hour work week.” See id. § 78B­12-203(7)(c) (LexisNexis 2012). The court may impute greater income upon entering “specific findings of fact as to the evidentiary basis for the imputation.” Id. (governing the imputation of income for child support purposes).[5] Such imputation “shall 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, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics.” Id. § 78B-12-203(7)(b).

¶9        The court heard extensive evidence related to Danielle’s ability to produce income, including her education and the range of potential salaries for individuals with similar educational achievements. Danielle earned a juris doctor from Stanford Law School in 1988 and a master’s degree in wildlife biology from Brigham Young University in 1996. She received scholarships for both her legal and wildlife biology education. Danielle was admitted to the Utah State Bar in 1990 and worked at two law firms immediately after that. Her employment at the later firm was terminated in 1993.

¶10 A vocational expert retained by Richard testified that there were “260 annual openings for attorneys in the state of Utah metro area”[6] and that the entry-level annual salary for an attorney in the Provo/Orem area at the time of trial was between $61,318.40 and $70,886.40. The expert did not know how many applicants there were for the 260 attorney positions but admitted that the competition was “keen.” The expert also testified that the entry-level annual salary for a wildlife biologist began at $40,788.80. Danielle did not present any contrary expert testimony.

¶11      The court ultimately imputed $50,000 in annual income to Danielle, identifying this sum as an “average” based on the vocational evaluator’s testimony that Danielle could earn between $40,788.80 and $70,886.40. The court also made several findings about Danielle’s ability to work as an attorney. For example, it found that Danielle’s “lack of success as a lawyer was due to her failure to keep up with billable hours” but that “[t]his does not mean [she] is incapable of employment in a law job.” The court pointed to evidence of Danielle’s demonstrated negotiating and organizational capabilities, finding that her “testimony about her inability to be employed is not credible and she is fully employable.” The court also noted the half­hearted efforts Danielle made to seek assistance from the Utah Department of Rehabilitation and to pursue mediation training and employment, ultimately finding that her “efforts to become self-sufficient have been inadequate.”

¶12      On appeal, Danielle raises several objections to the district court’s income imputation, namely that the vocational expert’s testimony failed to establish that she could obtain employment as an attorney, that the court erred in concluding that her efforts to obtain employment had been inadequate, and that the court failed to judge her ability to earn against “persons of similar backgrounds in the community.” See id. § 78B-12-203(7)(b).

¶13 Danielle first argues that “[t]here was no competent evidence that [she] could obtain employment as an attorney,” because “there was no evidence concerning the number of qualified applicants” for the available positions. She concedes that the vocational expert testified that there were “260 annual openings for attorneys” but highlights the expert’s admission that he did not know how many applicants there were for those jobs. She suggests that in the absence of evidence of the number of applicants, the evidence of the existence of job openings was insufficient to support the court’s findings.

¶14 Danielle cites no authority supporting this proposition. Nor does this argument seem reasonable on these facts. Imputation, by definition, contemplates a degree of speculation. Indeed, the statute allows courts to impute income “based upon employment potential and probable earnings.” See id. § 78B-12­203(7)(b) (emphases added). And “[n]either the statute nor any case law of which we are aware requires trial witnesses to identify a position with a specific employer that meets a spouse’s employment needs.” Bond v. Bond, 2018 UT App 38, ¶ 11, 420 P.3d 53.

¶15 Perhaps more importantly, Danielle did not present any evidence that the number of applicants overwhelmed the number of available jobs such that she had no reasonable likelihood of securing employment as an attorney.[7] Thus, the only affirmative evidence before the court was that there were 260 job openings for lawyers in the Utah metro area each year and that “the entry level wage for an attorney” in the area was between $61,318.40 and $70,886.40. While the expert noted that the job market was tight, there was no evidence suggesting that the odds of Danielle securing one of the 260 jobs were so low as to make her ability to earn the imputed income improbable. We think the unrebutted evidence before the district court was sufficient to support the finding that, in light of her education, Danielle could reasonably be expected to earn $50,000 annually as an attorney. See Dahl v. Dahl, 2015 UT 79, ¶ 121 (noting that it is the province of the fact finder to weigh competing evidence and that “we will not set aside findings of fact . . . unless they are clearly erroneous”).

¶16      Danielle also challenges the court’s finding that her efforts to obtain employment were inadequate. Although not required to impute income, a finding of “voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income.” Reller v. Argenziano, 2015 UT App 241, ¶ 33, 360 P.3d 768 (quotation simplified). Danielle asserts that she was not voluntarily or willfully unemployed because she had applied for jobs in 1993 but had been unsuccessful in finding employment as an attorney.

¶17 According to Danielle, the court’s analysis should be limited to considering what she did “immediately after termination, not 19 years later.” However, she again does not provide any authority to support this proposition. Danielle asserts that she “applied for 2 jobs per week for up to a year after she was fired in January of 1993.” But her inability to secure employment as an attorney in 1993 is not dispositive of her ability to do so nineteen years later. Danielle’s termination and unsuccessful job search nearly two decades before the court’s ruling simply do not demonstrate clear error in the finding that she “has made no credible efforts to become employed or self-sufficient in the seven years since the parties’ separation.”

¶18      Danielle also argues that it was unreasonable for the court to determine that she could find work as an attorney when she had not worked as an attorney for the past nineteen years. In support of this assertion, she cites Spencer v. Utah State Bar, 2012 UT 92, 293 P.3d 360, in which the Utah Supreme Court enforced the Utah State Bar’s requirement that an out-of-state applicant to the Utah Bar have practiced for three out of the preceding five years in order to be admitted without taking the Utah bar examination. See id. ¶¶ 16–18. Danielle argues that like the attorney in Spencer, she does not satisfy the three-out-of-the-last-five years rule and therefore is incapable of finding employment as an attorney in Utah. But that rule applied to out-of-state attorneys who wished to practice in Utah without taking and passing the Utah bar examination. See id. ¶¶ 9–13. In contrast, Danielle did take and pass the Utah bar examination. And there is no rule preventing attorneys who have passed that examination from activating their licenses and practicing law simply because they have not practiced law recently. Indeed, the absence of a rule to that effect suggests the opposite; it appears that in the view of the Utah State Bar, attorneys are presumptively competent to practice law in Utah, even if they have not practiced law recently, so long as they have passed the Utah bar examination and are eligible to be licensed.

¶19 Finally, Danielle argues that the court “did not properly apply [the] legal standard” for imputation of income because it failed to consider “prevailing earnings for persons of similar background in the community.” See Utah Code Ann. § 78B-12­203(7)(b). Danielle asserts that the “similar background” requirement means that the court should have considered only the prevailing earnings of “attorney[s] who had been fired from their only law jobs, had not been able to find a job while applying for 2 per week for a year [after termination,] and hadn’t worked in that occupation for over 19 years.” Danielle provides no reasoned analysis to support her assertion.

¶20 It is a well-recognized canon of statutory interpretation that “we presume that the legislature used each word advisedly.” Bylsma v. R.C. Willey, 2017 UT 85, ¶ 64 n.115, 416 P.3d 595 (quotation simplified). Here, the legislature employed the term “similar” rather than “identical” or “same.” We presume that this choice reflects the legislature’s intent not to limit a consideration of prevailing earnings to individuals with identical backgrounds. We therefore see no error in the district court’s consideration of the prevailing earnings of “persons of similar background” as opposed to “persons of identical background.” See Utah Code Ann. § 78B-12-203(7)(b).

¶21      Further, Danielle fails to acknowledge the ways in which the district court did take her background into account and even demonstrated leniency in its imputation. Although Danielle had several years of work experience as an attorney—albeit dated experience—the court based its imputation on salaries for entry-level attorneys. And even then, the court imputed only $50,000 of annual income to Danielle, more than $10,000 less than the low end of the vocational expert’s estimate of attorney salaries. Thus, Danielle’s assertion that the court failed to assess her potential income based on others of similar backgrounds is not supported by the record.

¶22 In short, none of the objections Danielle raises demonstrate that the district court exceeded its discretion in imputing income to her.

  1. Determination of Need

¶23 Danielle next contends that the district court abused its discretion in determining the amount of her needs. In calculating an alimony award, courts are required to consider, among other things, “the financial condition and needs of the recipient spouse.” Utah Code Ann. § 30-3-5(8)(a)(i) (LexisNexis Supp. 2010). Generally, courts are expected to assess need based on the standard of living existing at the time of the parties’ separation. See id. § 30-3-5(8)(c).

¶24 In evaluating Danielle’s needs, the court found that her “monthly needs . . . are overstated and bear no relation to her historical needs or standard of living as of the date of separation” and that her “claimed need exceeds [Richard]’s take-home income earned during the parties’ marriage.” The court called out a number of expenses that it considered to be overstated. It also found that Danielle’s “testimony regarding finances and expenses is not credible,” that “[s]he failed to provide any credible evidence regarding expenses,” and that her evidence contradicted itself. The court contrasted this with Richard’s testimony regarding the marital standard of living, which it deemed to be “credible, detailed and specific.”

¶25      We defer to the factfinder’s advantaged position to weigh conflicting evidence and testimony, and we will not set aside findings of fact so long as evidence supports them. See Dahl v. Dahl, 2015 UT 79, ¶ 121; Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 18, 305 P.3d 196. Danielle’s evidence of her financial needs was largely limited to her testimony and was generally unsupported by documentation. Yet, rather than address the district court’s credibility determination, on which its assessment of her needs largely rested, Danielle asks us to reconsider the reasonableness of her expenses. We decline to do so, because she has failed to demonstrate that the district court exceeded its discretion in its credibility determination, or even to address that determination. Moreover, in fashioning an alimony award, Danielle fails to address the district court’s consideration of the extensive support Richard provided Danielle from the date of the parties’ separation to the trial, the large property settlement Danielle received in the divorce, and the court’s finding that Danielle wrongly diverted marital funds from the parties’ joint accounts at the time of their separation.

¶26 Because the district court did not exceed its discretion in imputing income to Danielle and in calculating her need, we decline to disturb its alimony award.

  1. Richard’s Intent and Presumption of Gift

¶27 Danielle next contends that the district court erred by ruling that certain real property, owned solely by Richard before the marriage, remained his individual property despite being subsequently conveyed to Richard and Danielle as joint tenants. While a “transfer of otherwise separate property to a joint tenancy with the grantor’s spouse is generally presumed to be a gift,” Bradford v. Bradford, 1999 UT App 373, ¶ 22, 993 P.2d 887, it “is not conclusive [evidence] that a gift has been made.” Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980). Generally, the gift must be “coupled with an evident intent to do so [to] effectively change[] the nature of that property to marital property.” Bradford, 1999 UT App 373, ¶ 22. And “[t]he trial judge has wide discretion in the division of marital property (a matter of equity) and [the court’s] findings will not be disturbed unless the record shows there has been an abuse of discretion.” Jesperson, 610 P.2d at 328.

¶28 The two cases cited above are illustrative of the central role intent plays in dividing marital property. In Jesperson, the district court found that despite the fact that the parties’ property was held in joint tenancy, “there was no intention by Plaintiff to create a one-half property interest in Defendant, nor any expectation by Defendant that he had received a one-half property interest.” Id. The Utah Supreme Court upheld the district court’s finding in light of the court’s “wide discretion in the division of marital property.” Id. In contrast, in Bradford, this court held that real property that a husband had conveyed to himself and his wife as joint tenants was marital property because the husband himself testified that he “intended at that time to give a one-half interest in the home to his wife” and nothing in the record indicated otherwise. See Bradford, 1999 UT App 373, ¶ 24.

¶29      In this case, Richard owned the property in question prior to the marriage but then conveyed it to himself and Danielle as joint tenants. At the divorce trial, Richard was asked why the house had been retitled jointly:

Q. Okay. You heard [Danielle] testify that the Woodland Hills house was titled jointly. How did that occur?

Ahhh, I believe it was several months after we were married she demanded that I put her name on the deed for the Woodland Hills house. She claimed that if I wouldn’t do that she was going to leave me and leave the marriage.

Q. So you acquiesced in that?

A. I did.

Q. Did you intend for your premarital contribution to be a gift to her?

A. No, I didn’t.
. . .

Q. Do you consider your premarital contribution [of the Woodland Hills house proceeds] to be a gift to [Danielle]?

A. No, I don’t.

Q. Do you consider it a gift to the marriage?

A. No.

¶30      The court explained in its ruling on Danielle’s motion for new trial that “there was no evidence of intent by [Richard] to change the nature of his separate property contributions to marital property” and that the court had therefore exercised its equitable discretion to award Richard his premarital property.[8] In light of Richard’s testimony that he added Danielle’s name to the deed for the property only because Danielle threatened to leave him if he did not and the lack of any additional evidence, apart from the transfer itself, indicating that Richard intended to make a gift of the property, we conclude that the district court did not exceed its discretion in determining that Richard’s property retained its premarital character.

III. Due Process

¶31 Finally, Danielle contends that she “was denied due process by [Richard’s] misstatements to the court regarding financial matters, which resulted in [Danielle] having inadequate support to employ counsel” because the district court refused to release funds from the estate to her. She claims that this was a denial of due process and that the district court therefore should have granted her motion for new trial.

¶32 First, we are skeptical of Danielle’s claim that the funds she had prior to trial were insufficient for her to hire legal counsel. Danielle concedes that in addition to her temporary alimony award,[9] the court released $10,000 to each party on two separate occasions. And the parties further stipulated to a release of another $10,000 to each party. We also doubt Danielle’s claim that she was utterly helpless in preparing for trial without an attorney, as she is herself an attorney, having both graduated from Stanford Law School and passed the Utah bar examination.

¶33 In any event, Danielle has failed to adequately brief this issue. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”). She claims to have been denied due process but fails to discuss any legal standards regarding due process. Her argument appears to assume that she had a due process right to representation by counsel in the divorce proceedings, but she provides no legal support for that proposition. See, e.g., State v. Young, 853 P.2d 327, 354 (Utah 1993) (noting that there is generally “no right to counsel in a civil case”).[10] She also makes cursory reference to the “doctrine of unclean hands” but fails to discuss this doctrine or explain how it applies in the context of her due process argument. Instead of supporting her due process claim with reasoned legal analysis, Danielle peppers her brief with conclusory statements asserting that various actions by Richard and the court “denied her due process.” The rest of her argument consists of a list of complaints regarding the limitations she faced in preparing her case without an attorney in light of her claimed disabilities.

¶34 Essentially, Danielle’s argument asks us to hold that she was denied due process simply because she was not able to prepare her case in the manner that she would have preferred and because the court’s rulings did not come out in her favor. This does not establish an adequate basis for a due process claim, and we therefore conclude that Danielle has failed to carry her burden of persuasion on this issue.[11]

CONCLUSION

¶35 The district court’s factual findings supporting its imputation of income to Danielle and its assessment of her needs were supported by sufficient evidence and not clearly erroneous. Similarly, the court did not exceed its discretion by crediting Richard’s testimony regarding his separate premarital property and awarding him a credit for the value of that property. Further, we reject Danielle’s due process claims because she has failed to adequately brief them.[12] Accordingly, we affirm the district court’s findings and conclusions and its denial of Danielle’s motion for new trial.[13]

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

 

[1] Assisted by Leslie W. Slaugh.

[2] As is our practice in cases where both parties share a last name, we refer to the parties by their first names with no disrespect intended by the apparent informality.

[3] Danielle also challenges the court’s calculation of Richard’s income. Specifically, she claims that the court should have considered Richard’s W-2 for 2004. Danielle has not demonstrated that this argument was preserved. See Utah R. App. P. 24(a)(5). In fact, it does not appear that the disputed W-2 was admitted into evidence by the district court; we have not been able to locate the W-2 in the record on appeal, and Danielle does not provide a record citation to where the W-2 may be found. We therefore do not address this claim further. See id. R. 24(a)(8); id. R. 24(a)(12)(C); id. R. 24(e).

[4] Because the language of some statutes have changed, we cite to the version of the statutes in effect at the time of trial.

[5] “Although this section of the Utah Code addresses imputation for the purposes of child support, it is also relevant to imputation in the alimony context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.

[6] The expert explained that the term “state of Utah metro area” referred to the region between Provo and Ogden.

[7] Danielle cites one case for the proposition that, when determining “a recipient’s ‘income and resources,’ [the government] must ensure that any such income or resources ‘actually exist,’ be not ‘fictitious’ or ‘imputed,’ and ‘be actually on hand or ready for use when it is needed.’” See Heckler v. Turner, 470 U.S. 184, 200 (1985). But that case concerned public assistance from the government, not alimony. Moreover, the quoted language was describing a Social Security Board “policy statement applicable to various aid programs” and was not a legal holding by the Court. Id.

[8] Danielle was also awarded premarital assets in the amount of $8,482.

[9] At the outset of the divorce proceedings, the commissioner made a temporary award of $3,915 per month, of which half was child support and half was alimony. In arriving at this amount, the commissioner imputed to Danielle an after-tax income of $1,850 per month.

[10] We note that Danielle does not allege the court refused to allow her to be represented by counsel at her own expense. In such a case, our analysis would be different.

[11] Danielle also includes three claims regarding the adequacy of the record in her briefing of this issue. In all three, she essentially argues that a new trial should be granted due to the district court’s failure to record certain post-trial proceedings. We reject these claims because Danielle did not show “that the issue was preserved” or provide a “statement of grounds for seeking review of an issue not preserved.” See Utah R. App. P. 24(a)(5). Moreover, as the appellant, Danielle bears the burden of establishing a record adequate to support her claims on appeal. See, e.g., Reperex, Inc. v. May’s Custom Tile, Inc., 2012 UT App 287, ¶ 13, 292 P.3d 694; see also Utah R. App. P. 11(e)(2). This burden entails either providing a transcript of the relevant hearings or, where no transcript can be made, reconstructing the proceedings through the participants’ affidavits. See id. R. 11(g); see also Ajinwo v. Chileshe, 2018 UT App 39, ¶ 3, 420 P.3d 51. Danielle has not done the latter, and thus unable to carry her burden on appeal of showing prejudicial error.

[12] Danielle requests an award of fees on appeal. As she has not prevailed on appeal, we deny this request. See Leppert v. Leppert, 2009 UT App 10, ¶ 29, 200 P.3d 223. Also, Danielle is a pro se litigant and therefore not entitled to fees. See White v. White, 2017 UT App 140, ¶ 37, 402 P.3d 136.

[13] To the extent that we have not addressed other points or subpoints raised in Danielle’s briefs, we have determined that they lack merit and decline to separately analyze them. See Lucas v. Wells Fargo Bank, NA, 2013 UT App 117, ¶ 14 n.4, 302 P.3d 1240; see also Centennial Pointe Owners’ Ass’n v. Onyeabor, 2009 UT App 325U, para. 1 n.1 (declining to address some of a pro se appellant’s “inadequately briefed arguments”); Delta Delta Delta v. Theta Phi House Corp., 2009 UT App 133U, para. 5 n.1 (“Other issues raised by [the appellant] are without merit, and we decline to analyze them in detail.”).

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