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Tag: reverse

McKell v. McKell – 2024 UT App 72 – tolling of statute of limitations

McKell v. McKell – 2024 UT App 72
THE UTAH COURT OF APPEALS

SUMMER TATIANA MCKELL AND MICHELLE TISCHNER, Appellants, v. ROBERT C. MCKELL, Appellee.

Opinion No. 20220315-CA Filed May 9, 2024 Fourth District Court, Provo Department

The Honorable M. James Brady No. 210400528

Christopher M. Ault and Chad A. Tengler, Attorneys for Appellants Barry N. Johnson, James K. Tracy, J. Jacob Gorringe, and Bradley C. Johnson, Attorneys for Appellee

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

LUTHY, Judge:

¶1        Summer Tatiana McKell, through her legal guardian Michelle Tischner, brought suit against Robert C. McKell, her adoptive father and former legal guardian, for claims related to sexual abuse he committed against her. Robert[1] moved to dismiss Summer’s claims on the ground that they were untimely under the relevant statute of limitations. Summer contended that the limitations period was statutorily tolled while she was incompetent, until the time of Tischner’s appointment as her guardian. Before the district court issued a decision on the motion, our supreme court issued an opinion clarifying that the relevant statute tolls limitations periods throughout a person’s incompetency, regardless of whether the person has an appointed guardian. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 24, 506 P.3d 509. However, neither party brought this decision to the district court’s attention, and the court dismissed Summer’s claims on the grounds that the limitations period was not tolled while she had guardians appointed and that the combined time of the guardianships exceeded the limitations period.

¶2        Summer appeals, arguing that the district court improperly dismissed her claims as time-barred. She asserts that, as Zilleruelo clarifies, the limitations period was statutorily tolled even when she had guardians. Robert contends that Summer did not preserve this argument and that she invited any error in the court’s ruling on timeliness. Alternatively, he asks us to affirm on the ground that Summer did not sufficiently plead incompetence. We reject Robert’s preservation argument, we conclude that Summer did not invite the error leading to the dismissal of her claims, and we determine that Summer sufficiently pled incompetence. Accordingly, we conclude that the district court erred in dismissing Summer’s claims, and we reverse.

BACKGROUND[2]

Summer’s Birth and Adoption

¶3        Summer was born in Russia in 1994 and was later brought to Utah by her adoptive mother (Mother). Summer purportedly suffered traumatic injuries at birth that caused “a variety of mental, emotional, and behavioral developmental disabilities, including cognitive impairment.” Mother married Robert in 2007, and Robert subsequently adopted Summer.

Summer’s Guardianships and Robert’s Criminal Charges

¶4        In January 2013, after Summer had turned eighteen, Mother and Robert petitioned to be jointly appointed as Summer’s limited guardians and conservators. They were appointed as such on February 15, 2013.

¶5        Soon after this appointment, Summer reported that Robert had sexually assaulted her on multiple occasions. Criminal charges were filed against Robert in April 2013. Robert and Mother resigned as Summer’s legal guardians and conservators on January 7, 2014.

¶6        Michelle Tischner, Summer’s sister, was appointed as Summer’s legal guardian on October 2, 2017. In November of that year, Robert pled guilty to four counts of sexual battery for his conduct toward Summer.

Summer’s Complaint and Robert’s Motion for Judgment on the Pleadings

¶7        On April 22, 2021, Summer, through Tischner, brought this suit against Robert. In her complaint, Summer alleged, among other things, that Robert had sexually assaulted her.

¶8        In his answer, Robert asserted as an affirmative defense that Summer’s claims were “barred by the applicable statutes of limitations.” Robert then filed a motion for judgment on the pleadings, contending that “[t]he four-year statute of limitations governing each of [Summer’s] claims [had] expired several years [previously].”

¶9        Summer opposed this motion, arguing that it “ignore[d] the tolling provisions of Utah law that apply to disabled and incapacitated victims like Summer” and that “[b]ecause the statutes of limitation were tolled until Ms. Tischner was appointed guardian, the action was timely filed.” Summer pointed to Utah Code section 78B-2-108 (the Tolling Statute), which provides, “During the time that an individual is underage or mentally incompetent, the statute of limitations for a cause of action other than for the recovery of real property may not run.” Utah Code § 78B-2-108(2). Summer stated that “[t]he statute of limitations on [her] claims was tolled until the appointment of her guardian” and that “her claims were timely filed within the applicable statutes of limitation” because she “brought this action within four years of” the appointment of Tischner and “the curing of her legal incapacity.”

¶10 Robert replied that Summer’s complaint did not adequately plead incompetence and that even if it did, Summer’s incompetence was cured more than four years prior when Mother became Summer’s guardian and conservator.

Summer’s Amended Complaint and Robert’s Motion to Dismiss

¶11 Summer then sought and obtained leave to amend her complaint. Her amended complaint stated that “Robert signed and filed a ‘Verified Consent to Conservatorship’ wherein he affirmed that . . . ‘Summer suffers from a disability that has impeded her ability to progress mentally and intellectually, and on information and belief, has only attained the intellectual age of approximately 12 years, though she is 18 years old.’” It asserted that “Robert and [Mother’s] 2013 limited guardianship is void ab initio due to fraud upon the court in prosecuting the petition, bad faith, violating public policy against using court-appointed guardianship to accomplish unlawful ends, failing to discharge obligations or responsibilities, etc.” Additionally, it declared that “Summer remained under a disability and was therefore legally incompetent until the appointment of her current limited guardian.”

¶12 Robert filed a motion to dismiss Summer’s amended complaint. He again argued that Summer’s claims were time-barred because “she had a legal guardian in place for well over four years before asserting her sexual assault claims.”

¶13 Summer opposed Robert’s motion. She reiterated her position that she was incompetent until Tischner’s appointment as guardian, and she stated that “at that point the statute of limitations began to run.”

¶14 Robert replied by explaining that his calculations as to timeliness included Mother’s time as Summer’s guardian such that “between [Mother’s] and Tischner’s guardianships combined, Summer waited too long to assert her sex abuse claims.”

Zilleruelo v. Commodity Transporters, Inc.

¶15      In January 2022, our supreme court issued an opinion in Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509, interpreting the Tolling Statute. Therein, the court provided the following analysis:

The Tolling Statute has two relevant subsections. The first prohibits a mentally incompetent individual from initiating a claim without a legal guardian. With this language— “without a legal guardian”—the Legislature has decreed that a mentally incompetent person cannot bring suit unless that person has a legal guardian.

The second subsection speaks to a different question. It guarantees that a statute of limitations will not run against a mentally incompetent individual during the time that the individual is mentally incompetent. However, the Legislature omitted the language “without a legal guardian” from the second subsection. . . . We presume omissions to be purposeful.

Taking note of this omission and deeming it purposeful, the language of the Tolling Statute is plain. A statute of limitations is tolled during a person’s mental incompetency, whether or not that person has a legal guardian.

[The appellee] argues for a reading of the Tolling Statute where the second subsection would parallel the first. In other words, [the appellee] wants us to read the Tolling Statute to provide: “During the time that an individual is underage, or mentally incompetent and without a legal guardian, the statute of limitations for a cause of action other than for the recovery of real property may not run.” Without a doubt, the Legislature could have written the Tolling Statute in this way. But also without a doubt, it did not. And it is not our job to second guess the Legislature and insert substantive terms into the statute’s text.

Simply stated, the Tolling Statute provides that the statute of limitations is tolled while a person is mentally incompetent, whether or not that person is represented by a legal guardian.

Id. ¶¶ 20–24 (cleaned up). Neither party brought Zilleruelo to the district court’s attention.

Oral Argument and the Ruling on Robert’s Motion to Dismiss

¶16      In February 2022, the district court heard oral argument on Robert’s motion to dismiss. During this hearing, Summer’s position remained consistent with her earlier statements regarding the effect of her incompetency to toll the statute of limitations until the time of Tischner’s guardianship. Summer’s counsel stated that “a person does gain competency when there is a guardian that is appointed” and that Summer’s “incapacity was cured by the appointment of Michelle Tischner as her guardian.” Again, neither party raised Zilleruelo at the hearing or in subsequent briefing to the district court.

¶17 In March 2022, the district court granted Robert’s motion and dismissed Summer’s claims. The court noted that Robert had argued “that the standard for legal incompetency is different than the standard for a disability that would apply to the appointment of a guardian,” but the court did not “rule on the parties’ argument regarding the differences between competency and disability” because it reasoned that “even assuming that [Summer was] correct that her incapacitation was sufficient to deem her mentally incompetent and that it triggered the tolling of the statute of limitations, the appointment of guardians for her removed the tolling while she had guardians appointed.” The court calculated that between Mother and Tischner, Summer “had guardians appointed for a total of four years and 133 days after the alleged sexual assault and before she filed the present lawsuit.” Accordingly, the court concluded that Summer’s “causes of action [were] barred by the statute of limitations” and dismissed them. Summer now appeals.

ISSUE AND STANDARD OF REVIEW

¶18 Summer argues that the district court erroneously dismissed her claims as time-barred because the Tolling Statute renders them timely. “Because a trial court’s grant or denial of a motion to dismiss is a question of law, the standard of review is correctness.” State v. Arguelles, 2020 UT App 112, ¶ 6, 473 P.3d 170 (cleaned up).

ANALYSIS

¶19      Summer asserts that the district court “err[ed] as a matter of law in holding that statutes of limitation for an incompetent person’s claims . . . begin to run upon the judicial appointment of a legal guardian.” She argues that our supreme court’s opinion in Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509, demands the conclusion that the statute of limitations has been tolled throughout the duration of Summer’s alleged ongoing incompetence—regardless of guardianship status—such that her claims were timely. We agree that Zilleruelo does demand that conclusion. The holding in Zilleruelo clearly establishes that if Summer was incompetent, her claims were not time-barred because the relevant statute of limitations was tolled under the Tolling Statute for the duration of Summer’s incompetency, regardless of guardianship status. See id. ¶ 24.

¶20 Robert responds not by asserting that the court’s legal conclusion on tolling during incompetency or its application of the Tolling Statute were correct but, rather, by contending that Summer’s argument on appeal is unavailing because she did not preserve it or argue an exception to preservation and because she invited any error on this point. Robert additionally asserts that we should affirm on the alternative ground that Summer did not sufficiently plead incompetence. We address these contentions in turn.

  1. Preservation

¶21 Robert contends that we should not consider Summer’s appeal because Summer failed to preserve the issue of whether “statutes of limitation for an incompetent person’s claims . . . begin to run upon the judicial appointment of a legal guardian.” (Omission in original.) In support of this argument, Robert points to caselaw establishing that Utah appellate courts “view issues narrowly” and “recognize that an appellant raises a new issue when the appellant raises a legal theory entirely distinct from the legal theory the appellant raised to the district court.” Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned up).

¶22 We first note that the issue of the impact of the Tolling Statute was before the district court. Robert raised the issue of whether Summer’s claims were time-barred in his answer and motion for judgment on the pleadings, and Summer responded by quoting the Tolling Statute and arguing that it rendered her claims timely. Whether we define the issue broadly as the timeliness of Summer’s claims or more narrowly as the effect of the Tolling Statute on the timeliness of Summer’s claims given her guardianships, these issues were preserved.[3] Either issue was “presented to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). That Summer agreed to an interpretation of the Tolling Statute that was legally incorrect does not change the reality that the court was presented with and ruled on these issues. See Cottam v. IHC Health Services, Inc., 2024 UT App 19, ¶ 18 n.2, 544 P.3d 1051 (“The court was not required to hold the [defendants] to their apparent legal concession; it was required to reach its own conclusion on the [legal question presented].”). And once an issue has been raised in the trial court, “new arguments” as to that issue, including “citing new authority or cases supporting an issue that was properly preserved,” “do not require an exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443. What Summer has done on appeal is to cite a new case—namely, Zilleruelo—in support of an issue that was properly preserved— namely, the timeliness of her claims in light of the Tolling Statute and her guardianships.

¶23      We recognize that, as Robert asserts, Summer is relying on appeal on a Tolling Statute theory—that the Tolling Statute tolls the running of the statute of limitations during all of her incompetency, regardless of whether she has a guardian—that is distinguishable from the Tolling Statute theory she relied on below—that the Tolling Statute tolls the running of the statute of limitations for periods during which she was incompetent and without a guardian and that Mother should not be deemed to have been her guardian. However, based on the same considerations that guided our supreme court’s decision in Patterson v. Patterson, 2011 UT 68, 266 P.3d 828, we decline to characterize these as entirely distinct legal theories for preservation purposes.

¶24 In Patterson, the defendant had asserted below that an existing Utah Supreme Court opinion that arguably controlled the key issue in the case should be either distinguished or overruled. See id. ¶ 4. The defendant had failed to bring to the district court’s attention the fact that legislation subsequent to the relevant supreme court opinion had overruled that opinion already. See id. ¶¶ 18, 20. The district court determined that the supreme court opinion at issue was controlling, and in reliance on that opinion, it granted partial summary judgment against the defendant. See id. ¶ 5.

¶25 On appeal, the defendant asked the supreme court to overrule its prior opinion or, alternatively, to apply the subsequently enacted statute, which the defendant newly argued had itself overruled the prior opinion already. See id. ¶ 8. The plaintiff responded by asserting that the prior opinion “remain[ed] good law and should not be overruled.” Id. He further contended that the subsequent statute had not overruled the prior opinion and that, in any event, the court should not consider the statutory argument because the defendant raised it for the first time on appeal. See id.

¶26 The supreme court began its analysis by considering whether the defendant was barred from arguing the applicability of the subsequent statute where he had not cited it in the district court. Id. ¶ 10. After explaining the “two primary considerations underlying the [preservation] rule”—“judicial economy and fairness”—the court concluded that the preservation rule did not prevent the defendant from raising on appeal what it deemed to be “controlling legislation.” Id. ¶¶ 15‒16, 18. Simply stated, where the statute was relevant to “a properly preserved issue,” the court was “unwilling to disregard controlling authority that [bore] upon the ultimate resolution of [the] case solely because the parties did not raise it below.” Id. ¶ 18.

¶27 The court acknowledged that its decision might “undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. Specifically, it said that judicial economy might not be served since the district court “may have ruled in [the defendant’s] favor and [the] appeal [may] have been avoided” if the defendant had raised the controlling authority in the district court. Id. And it explained that fairness was not being fully served since it was “not entirely fair to characterize the district court’s ruling as ‘error’ because it did not have the statute before it.” Id. But the court emphasized that there were “other important [policy] considerations that cut against application of the preservation rule in [that] situation.” Id. ¶ 20.

¶28      First, the court noted that consideration of the controlling statute was “necessary to a proper decision” and that “[a]s the state’s highest court, [it has] a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law.” Id. Second, the court observed that “the issue of whether and how” the statute applied was “one that [could] be resolved purely as a matter of law.” Id. Third, the court then pointed out that the defendant’s “failure to raise the argument below appear[ed] to have been inadvertent, rather than tactical, because [the court could] conceive of no way in which [the defendant] would [have] derive[d] an advantage from reserving the statutory argument for appeal rather than raising it in the district court.” Id. Finally, the court highlighted the parties’ “ethical obligation to disclose adverse authority to the court,” explaining, “[T]he failure to raise the controlling statute in the district court is a failure that can be appropriately assigned to counsel for both parties. Were we to refuse to apply the [controlling statute] here, it could incentivize attorneys to disregard their ethical obligation to point out controlling adverse authority.” Id.

¶29      Almost all of these important policy considerations that cut against application of the preservation rule in Patterson likewise cut against application of the preservation rule here. As an initial matter, where newly cited authority is relevant to a narrow, preserved issue, we, like the Patterson court, are “unwilling to disregard controlling authority that bears upon the ultimate resolution of [the] case solely because the parties did not raise it below.” Id. ¶ 18. Additionally, the impact of the Tolling Statute here “can be resolved purely as a matter of law.” Id. ¶ 20. Moreover, Summer’s “failure to raise the [Zilleruelo] argument below appears to have been inadvertent, rather than tactical, because we can conceive of no way in which [Summer] would derive an advantage from reserving [this] argument for appeal rather than raising it in the district court.” Id. Finally, because both parties had “an ethical obligation to disclose adverse authority to the court,” “the failure to raise [Zilleruelo] in the district court is a failure that can be appropriately assigned to counsel for both parties.” Id. And like our supreme court, we have no desire to “incentivize attorneys to disregard their ethical obligation to point out controlling adverse authority.”[4] Id.

¶30 Admittedly, the distance between the argument made in the district court in Patterson (that prior precedent should be overruled) and the alternative argument made on appeal in Patterson (that prior precedent had already been statutorily overruled) was less than the distance between Summer’s argument below (that Mother should not be deemed to have been Summer’s guardian) and Summer’s argument on appeal (that it does not matter whether Summer had a guardian as long as Summer was mentally incompetent). But as close cases like this one reveal, there is no bright line between a new argument and an entirely distinct legal theory. Therefore, we have been counseled “to look at the underlying policies to determine whether new arguments are actually entirely new issues.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443. That is what we have done here. And in light of the policy considerations identified above, we conclude that Summer’s reliance on Zilleruelo does not present an entirely new issue but, rather, a new argument under the narrow, preserved issue of whether her claims were timely in light of the Tolling Statute and her guardianships. We therefore reject Robert’s argument that our preservation doctrine prevents us from considering the applicability of Zilleruelo.

  1. Invited Error

¶31 Robert also argues that Summer invited any error in the district court’s ruling related to the Tolling Statute because she affirmatively represented to the court “the very legal principle she now challenges on appeal.” We disagree and conclude that the invited error doctrine is inapplicable here.

¶32      “Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling.” State v. Popp, 2019 UT App 173, ¶ 23, 453 P.3d 657 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). “To invite an error, a party must do more than simply fail to object; the party must manifest some sort of affirmative representation to the trial court that the court is proceeding appropriately.” Id.

Application of the invited error doctrine serves three important purposes. First, it discourages parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal. Second, it encourages counsel to actively participate in all proceedings and to raise any possible error at the time of its occurrence. Finally, it fortifies our long-established policy that the district court should have the first opportunity to address a claim of error.

State v. Moa, 2012 UT 28, ¶ 25, 282 P.3d 985 (cleaned up).

¶33 There is no denying that Summer’s counsel stated to the court that “a person does gain competency when there is a guardian that is appointed”; this statement conceded a legal rule that was wrong, which the district court erroneously applied when it determined that “the appointment of guardians for [Summer, including Mother,] removed the tolling” of the relevant statute of limitations. However, Summer never encouraged the court’s ultimate decision dismissing her claims as untimely under the Tolling Statute. Nor did she affirmatively represent that the district court was “proceeding appropriately” by dismissing her claims. Popp, 2019 UT App 173, ¶ 23. To the contrary, Summer steadfastly maintained that her claims were timely under the Tolling Statute by adamantly denying that Mother’s guardianship cured her incompetency.

¶34 Moreover, Summer’s actions in the district court fulfilled the first purpose of the invited error doctrine and at least partially fulfilled its second purpose. Specifically, there is no indication that Summer intentionally misled the trial court where, as we have already observed, there was no way in which she would have derived an advantage by waiting to raise Zilleruelo until appeal. And her counsel was actively participating in the proceedings and raised the possible error he perceived at the time of its occurrence.

¶35 We acknowledge that a decision to not apply the invited error doctrine in this circumstance may undermine the other purposes of the doctrine, including to encourage counsel to raise any possible error at the time of its occurrence and to thereby fortify the “long-established policy that the district court should have the first opportunity to address a claim of error,” Moa, 2012 UT 28, ¶ 25 (cleaned up)—the identical judicial economy purposes that undergird the preservation rule, see Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. However, the same important counter-considerations that led us to not apply the preservation rule in this situation, see supra ¶ 29, also lead us to not apply the invited error doctrine in this situation. Much like we said with regard to preservation, “we are unwilling to disregard controlling authority that bears upon the ultimate resolution of a case solely because the parties did not [discover] it below,” Patterson, 2011 UT 68, ¶ 18, and, thus, agreed to a misstatement of the law. Instead, we hold that the invited error doctrine does not apply when, as here, there is controlling authority that counsel for both sides—as well as the trial court—wholly failed to recognize and the appealing party did not acquiesce in the ultimate decision that is rendered erroneous by that controlling authority. In such circumstances, only an affirmative disavowal of the controlling authority itself will constitute invited error.

III. Sufficiency of Pleadings Regarding Incompetence

¶36 Finally, Robert argues that we should “affirm on the alternate ground that the [a]mended [c]omplaint fails to allege that Summer is mentally incompetent, which means that her claims are barred by the statute of limitations.” Robert asserts that the threshold for a person to be deemed “mentally incompetent” for purposes of the Tolling Statute is a high bar that Summer failed to sufficiently plead.

¶37 Our supreme court has explained that “tolling statutes based on mental incompetency are enacted to relieve from the strict time restrictions people who are unable to protect their legal rights because of an overall inability to function in society.” O’Neal v. Division of Family Services, 821 P.2d 1139, 1142 (Utah 1991) (cleaned up). “Courts generally hold that a person is incompetent for the purposes of a provision tolling a statute of limitations when the disability is of such a nature to show him or her unable to manage his or her business affairs or estate, or to comprehend his or her legal rights or liabilities.” Id. (cleaned up).

¶38      Summer’s amended complaint alleged that “Robert signed and filed a ‘Verified Consent to Conservatorship’ wherein he affirmed that . . . ‘Summer suffers from a disability that has impeded her ability to progress mentally and intellectually, and on information and belief, has only attained the intellectual age of approximately 12 years, though she is 18 years old.’” The amended complaint also alleged that “Summer remained under a disability and was therefore legally incompetent until the appointment of her current limited guardian.” Additionally, in both her original complaint and her amended complaint, Summer alleged that she “suffers from a variety of mental, emotional, and behavioral developmental disabilities, including cognitive impairment” due to her birth injuries and that “she has profound difficulties in seeking out and processing information on her own.” These allegations are more than sufficient to survive a motion to dismiss on the issue of mental incompetency under the Tolling Statute.

¶39      Of particular relevance are the allegations that, although of an adult age, Summer had attained the intellectual age of only a twelve-year-old and that she suffers from mental disabilities and cognitive impairment that make it profoundly difficult for her to seek out and process information. These allegations and permissible inferences that can be drawn from them paint a picture of someone who is unable to manage her own business affairs and to comprehend or protect her legal rights because of an overall inability to function in society. See generally Alpine Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 7 n.2, 424 P.3d 95 (“In determining whether a lawsuit survives a motion to dismiss, we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff.” (cleaned up)). Indeed, where the Tolling Statute operates to relieve from the strict time restrictions of applicable statutes of limitation a person who is actually twelve years old, we find it difficult to conclude that the Tolling Statute would not similarly relieve an adult with the mental capacity of a twelve-year-old. Accordingly, we do not affirm on this alternative ground.

CONCLUSION

¶40      Zilleruelo clarifies that the Tolling Statute applies during the duration of a person’s incompetency, regardless of guardianship status. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 24, 506 P.3d 509. Summer’s claims were therefore timely filed. Because we decline to conclude that this issue was unpreserved, to apply the doctrine of invited error, or to affirm on the alternative ground that Summer failed to sufficiently plead her incompetence, we reverse the district court’s decision and remand this matter to the district court for further proceedings consistent with this opinion.

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


[1] “Because the parties share the same last name, we use their given names with no disrespect intended by the apparent informality.” Rosser v. Rosser, 2021 UT 71, ¶ 1 n.1, 502 P.3d 294.

[2] “In reviewing a district court’s grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (cleaned up).

[3] Counsel for Robert stated during oral argument before this court, “The issue in front of the district court was this: Do we, for purposes of Summer’s statute of limitations, apply all of the time that she had a legal guardian in place? So do we count both the time that Michelle Tischner was the legal guardian and do we count the time that [Mother] was her legal guardian?” Such a framing is consistent with our conclusion that the district court had an opportunity to rule on the issue of whether Summer’s claims were timely under the Tolling Statute in light of her guardianships.

[4] The only Patterson policy consideration not applicable here is the responsibility of appellate courts to “maintain a sound and uniform body of precedent,” which cannot be done if an appellate court is required “to issue an opinion in contravention of” controlling authority. Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. This was an active consideration in Patterson because the defendant there made alternative arguments on appeal, which required the supreme court to address the merits of the key issue in any event. See id. ¶ 8. In contrast here, Summer’s appellate argument is based solely on Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509. Thus, if we were to determine that her argument was precluded by the preservation rule, we could simply affirm the district court’s decision without reaching the merits of the timeliness issue and thereby avoid issuing an opinion in contravention of controlling authority. We are not convinced, however, that the inapplicability here of this one policy consideration compels a different conclusion as to preservation.

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Sorensen v. Crossland – 2024 UT App 41 – denial of due process

Sorensen v. Crossland – 2024 UT App 41

THE UTAH COURT OF APPEALS

CANDICE CROSSLAND SORENSEN, Appellant, v. STEVEN G. CROSSLAND AND LORI A. MAY, Appellees.

Opinion No. 20220756-CA Filed March 28, 2024, Third District Court, Salt Lake Department

The Honorable Mark S. Kouris No. 180902903

Ralph C. Petty, Attorney for Appellant

Matthew N. Olsen and M. Tyler Olsen, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN, FORSTER concurred.

MORTENSEN, Judge:

¶1 A father and mother stole from their daughter by taking settlement funds of $133,000 awarded to her and buying themselves a house. Fifteen years later, the daughter discovered the theft and sued, obtaining a judgment of nearly $279,000. In the meantime, the parents divorced and the father remarried. The daughter then filed the present action, maintaining that her father fraudulently transferred funds to his new wife for less than equivalent value, all while paying nothing on the judgment and being insolvent. The matter came before the district court for trial. Midway through the examination of the daughter’s first witness, the district court raised a legal issue, suspended the presentation of witnesses and evidence, and ordered supplemental briefing. The district court indicated that a future hearing would be held. But no such hearing occurred, and instead the district court entered a ruling—the effect of which was the dismissal of the daughter’s case. The daughter appeals, claiming legal error and a deprivation of due process. We agree and reverse.

BACKGROUND

¶2        Candice Crossland Sorensen, who was born in 1989, received about $133,000 in a medical malpractice settlement when she was a minor. The funds were placed into accounts managed by her parents, Steven G. Crossland and Cindi R. Crossland. In 1999, Steven and Cindi used these funds to purchase a house.[1] The property was titled in the parents’ names only, and Candice moved into the house with her parents.

¶3        In 2014, when Candice learned of the use of her settlement money, she sued Steven and Cindi. This suit was not resolved until March 2018, at which point a judgment was entered against Steven and Cindi, jointly and severally, in the amount of nearly $279,000, with a judgment interest rate of 3.76%. No payments were ever made to Candice, and Candice did not attempt to collect the judgment.

¶4        Steven and Cindi divorced in January 2015, prior to the entry of the judgment, and in September 2015, Steven met and began living with Lori A. May. Steven moved into a property Lori was renting, and he paid Lori $700 monthly toward rent. Lori and Steven split the remaining expenses for utilities, car payments, and groceries. In July 2016, Steven and Lori ceased renting and purchased a house, for which Steven made the mortgage payment while Lori shouldered other living expenses.[2]

¶5        In May 2018, Candice initiated this action against Steven and Lori for fraudulent transfer,[3] arguing that Steven gave money to Lori (1) without receiving anything of value in exchange, (2) “with the intent to hinder, delay, and defraud” Candice, and (3) while he was insolvent or about to become insolvent shortly after the transfer.

¶6        Extensive discovery was conducted, including the taking of depositions from Candice, Steven, and Lori. Candice also subpoenaed copies of Steven’s and Lori’s bank statements.

¶7        The action was set for a two-day bench trial, but the proceeding lasted only a half day. It began with the testimony of Steven, which was interrupted by the lunch break. Once back in session, the court ordered the parties to prepare briefs addressing the law on fraudulent transfer. Specifically, the court seemed to be concerned that Candice had not made any previous effort to collect the debt, which—in the court’s view—removed her claim from the realm of fraudulent transfer. In reference to the money Steven owed Candice, the court stated,

I don’t believe that there is a legal obligation to pay the debt [from the judgment]. I think there’s probably a moral obligation, but I don’t think there’s a legal obligation.

And the reason I think that is because once the debt is there, the law gives the creditor a number of tools by which to go get that debt. I mean, the creditor literally could seize personal assets and sell them, they could foreclose on homes, they could attach bank accounts, they could garnish wages. Those are all the tools that debt collectors have to go out and get this debt.

Fraudulent transfer is, I think, a whole different chapter in . . . that we’ve got a collector trying to [collect on the debt], but the debtor is playing games with hiding the money or moving the title somewhere else, or doing whatever he can to avoid those methods. But I think the process starts with [debt collection] methods . . . .

I don’t think . . . there have been collection efforts in this case . . . . I don’t know what has brought us to here. But I do believe, I know that the monthly rental payments and so forth that [Steven] is paying [Lori] to live in the house and so forth, I don’t believe those are unlawful transfers.

Given this concern, the court instructed the parties to prepare supplemental briefing on whether Steven “paying half his rent by paying” Lori was “somehow a fraudulent transfer.” The court indicated that once the supplemental briefing was completed, Candice was to file a request to submit and the court would “then go and schedule a hearing.”

¶8        As it turns out, no request to submit was filed, but the court nevertheless issued a ruling—without the benefit of another hearing. Candice never had the opportunity to complete her examination of Steven, call Lori as a witness (as she had indicated she would do in her disclosures), and rest her case.

¶9        The court’s ruling was premised on this point:

There was no evidence that [Candice] had initiated the traditional methods to satisfy [the] judgment. Nor that [Candice] provided evidence of even sending personal demand letters or placing similar phone calls. Instead, [Candice’s] argument is that [Steven and Lori] did not pay the outstanding judgments, but instead continued to live their lives and satisfy their routine expenses.

From the lack of effort to collect the judgment, the court concluded that Candice had proved “no instance” that “any of [Steven and Lori’s] use of money was [done] with ‘actual intent to hinder, delay, or defraud’ [Candice’s] collection efforts” under the Uniform Voidable Transactions Act. See Utah Code § 25-6­202(1)(a) (“A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation . . . with actual intent to hinder, delay, or defraud any creditor of the debtor . . . .”). In other words, because Candice had not shown that any “pending collection effort was thwarted” by Steven and Lori’s expenditures, her claim of fraudulent transfer necessarily failed. Another current of the court’s reasoning was that Candice had not shown that any of Steven and Lori’s purchases were “unreasonable,” implying that such a showing was necessary to establish an intent to defraud.

¶10      Candice subsequently filed a motion to amend the findings and a motion for a new trial. Candice’s motions were based on the assertions that (1) Steven’s examination was interrupted by the lunch break and never completed, (2) Lori was never “examined and no evidence was entered in relation to her testimony” even though Candice had intended to call her, and (3) Candice did not “rest [her] case or indicate that [she] had completed [her] presentation of evidence to the court.” Given the “state of the proceeding when the trial was recessed,” Candice argued that many of the court’s factual findings and conclusions of law were “unjustified.” She asserted that “[w]ithout the opportunity to present the remainder of her evidence, the Court [could not] make accurate and comprehensive findings and conclusions” and that she would, accordingly, suffer “the denial of her due process rights.” The court denied both motions. Candice appeals.

ISSUE AND STANDARD OF REVIEW

¶11      Candice argues that the district court violated her right to a fair and meaningful trial under the due process clause of the Utah Constitution. See Utah Const. art. I, § 7. “Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).[4]

ANALYSIS

¶12      Truth be told, we are not sure what happened here. But we are sure that something seriously amiss occurred when Candice was not provided with the opportunity to fully present her case.

¶13      We agree with Candice that her due process rights to a fair and meaningful trial were denied. There is no question that Candice never completed her presentation of evidence through the examination of Steven and Lori. Indeed, in its order denying Candice’s two post-trial motions, the district court stated that “[a]fter reviewing the audio recording” of the trial, it found that Candice’s claim that she “presented only a portion of the examination” of Steven “to be true, albeit out of context.” “To provide context,” the court stated that Candice’s examination of Steven consisted entirely of “having [Steven] go line-by-line through his check register and explain each transaction” and that “the balance of this testimony would be to continue the trip through [Steven’s] check register.” It appears that the court concluded that such evidence would not be helpful, and it was at this point that the court instructed the parties to prepare supplemental briefing because the court could “[n]ot understand[]” how these transactions could be the “basis for the fraudulent conveyance claims.” The district court’s explanation fails, however, to address why, despite the court not understanding how the transactions would support Candice’s claims, it did not allow the witness to complete his testimony; nor did the district court explain why no other witnesses or evidence would be allowed.[5] Candice also never rested her case in this trial precipitously terminated by the court. The proceeding was simply suspended, as far as we can tell, but never reconvened.

¶14 “No principle is more fundamental to the integrity of a society that claims allegiance to the rule of law than the principle that a person may not be deprived of his property without first being afforded due process of law.” Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 28, 156 P.3d 782. “Due process of law requires” that a court “hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.” Riggins v. District Court, 51 P.2d 645, 660 (Utah 1935) (cleaned up).

¶15      This principle is repeatedly embodied in the Utah Rules of Civil Procedure. “In all actions tried upon the facts without a jury . . . the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence.” Utah R. Civ. P. 52(a)(1) (emphasis added). And a court is allowed to make a judgment on partial findings only if “a party has been fully heard on an issue during a nonjury trial.” Id. R. 52(e) (emphasis added).

¶16      That did not happen here. Candice was never “fully heard” on her fraudulent transfer claim. Not only was she unable to complete her examination of Steven, but she was never afforded the opportunity even to begin her examination of Lori, who was disclosed as a witness. We are hard pressed to see how Candice was heard in a way that would satisfy her due process rights. Additionally, we note that the district court, shortly after it instructed the parties to submit supplemental briefing, expressly stated that it would “schedule a hearing” upon receiving Candice’s notice to submit. But Candice filed no such request, and the court did not schedule such a hearing. Given the procedural posture of the case, Candice had every reason to believe that she would be afforded the opportunity to complete her presentation of evidence and then rest her case, and it must have come as a surprise to her that the court issued its ruling prematurely.

¶17      Accordingly, we reverse the court’s ruling and remand this matter for further proceedings to allow Candice the opportunity to complete her presentation of evidence.

¶18 Because this matter is being remanded, and where the district court will likely face the same question about the applicability of Utah’s fraudulent transfer law, we provide the following guidance. See In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 149, 536 P.3d 38 (offering guidance regarding an issue ancillary to the reason for remand). The court repeatedly mentioned that Candice never made any efforts to collect on the judgment, the implication being that she could not show an intent to defraud, hinder, or delay without having first made such an effort. But we point out that there is no requirement that a person attempt any collection efforts prior to filing a fraudulent transfer action. See Utah Code § 25-6-202(1). The Uniform Voidable Transactions Act expressly states that a creditor can pull back transfers “whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.” Id. In other words, the debt does not necessarily have to be liquidated to support a fraudulent transfer claim. The only requirement is that the debt exist, even if it’s on an unliquidated or a contingent basis. Here, there is no question that Steven’s debt to Candice existed before the alleged fraudulent transfers were made. The debt arose the moment that Candice was entitled to the medical malpractice settlement money. Indeed, Steven admitted in his deposition that he knew Candice was entitled to the money but due to his and Cindi’s actions, the money was not available:

Counsel: [A]s part of [Candice’s medical malpractice] settlement, there was a sum of approximately $133,000 that went into a trust account that was controlled by her parents, you and Cindi, that was paid for by the doctors; correct?

Steven: Yes.

Counsel: Now, the understanding was, I guess, that

when Candice reached the age of 18 years old, that that money would become hers; is that correct?

Steven: Correct.

.  . .  .

Counsel: Now, at the time Candice turned 18 or thereafter, those funds . . . that you and Cindi controlled . . . were not made available to her, were they?

Steven: No . . . .

Counsel: And the reason was because they had been

utilized for the purchase of the [first house]; is that correct?

Steven: Correct.

And it was well after Steven was aware of his indebtedness to Candice (she turned eighteen in 2007) that he made the alleged fraudulent transactions associated with the purchase of the second house with Lori in 2016. To put it plainly, Candice was under no obligation to engage in collection efforts when, as here, the debtor was well aware of his obligation. Indeed, it seems to us that any expenditures Steven made after Candice was entitled to medical malpractice settlement money could potentially—if supported by evidence that they were made with an intent to hinder, delay, or defraud—be the basis for a fraudulent transfer claim.

CONCLUSION

¶19 We conclude that Candice’s due process rights were abridged when the district court issued a ruling in the context of a trial without affording Candice the opportunity to complete her presentation of evidence. We reverse the district court’s order dismissing her case and remand this matter for proceedings consistent with this opinion.

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


[1] Because some of the parties share the same surname, we employ given names for all parties.

[2] The record is unclear as to what happened to the equity in the home purchased by Steven and Cindi.

[3] The Fraudulent Transfer Act as been renamed to the Voidable Transactions Act. See JENCO LC v. SJI LLC, 2023 UT App 151, ¶ 20 n.4, 541 P.3d 321. However, we will use the nomenclature employed by the district court.

[4] Candice also asserts that the district court erred in denying her motions to amend the findings and for a new trial. Because we resolve this appeal on the first issue, we have no need to address these other claims of error.

[5] That is not to say that a district court could never curtail the presentation of evidence that the court found unhelpful. See Utah R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”). For example, the district court could have solicited a proffer of the remainder of Candice’s case in chief. See State v. Boyd, 2001 UT 30, ¶ 36, 25 P.3d 985 (“A proffer is a mechanism by which a party may create an appellate record of what the evidence would have shown.”). With that record, we might have been able to determine whether Candice’s claims could have entitled her to a judgment.

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

Knight v. Knight – 2023 UT App 86

THE UTAH COURT OF APPEALS

JARED M. KNIGHT,

Appellee,

v.

REBECCA B. KNIGHT,

Appellant.

Opinion

No. 20210080-CA

Filed August 10, 2023

Third District Court, Salt Lake Department

The Honorable Robert P. Faust

No. 184902185

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

Attorneys for Appellant

Bart J. Johnsen and Alan S. Mouritsen,

Attorneys for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which

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

MORTENSEN, Judge:

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

¶14      Rebecca now appeals.

ISSUES AND STANDARDS OF REVIEW

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

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

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

ANALYSIS

I. Rebecca’s Interest in the Trust

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

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

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

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

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

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

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

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

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

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

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

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

II. Equitable Grounds for Dividing the Trust

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

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

III. Alimony

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

¶29 Under Utah law, courts must consider in alimony determinations the factors listed in Utah Code section 30-3-5, including “(i) the financial condition and needs of the recipient spouse; (ii) the recipient’s earning capacity or ability to produce income, including the impact of diminished workplace experience resulting from primarily caring for a child of the payor spouse; [and] (iii) the ability of the payor spouse to provide support.” Utah Code § 30-3-5(10)(a); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); English v. English, 565 P.2d 409, 411–12 (Utah 1977). “An alimony award should also advance, as much as possible, the primary purposes of alimony.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). Alimony is intended “(1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Jensen v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117 (cleaned up).

¶30      We have previously explained,

Alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances, with the goal being an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.

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

A.        Home Maintenance

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

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

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

B.        Health and Personal Care

1.         Health Insurance

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

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

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

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

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

2.         Personal Grooming

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

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

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

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

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

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

¶42      A court’s inquiry into the marital standard of living must evaluate the specific circumstances of that couple, and expenses that are unreasonable in light of one couple’s marital standard of living may be reasonable in light of another couple’s marital standard of living. “Indeed, we have explained that alimony is not limited to providing for only basic needs but should be fashioned in consideration of the recipient spouse’s station in life in light of the parties’ customary or proper status or circumstances.” Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (cleaned up). And “the goal” of the inquiry is “an alimony award calculated to approximate the parties’ standard of living during the marriage as closely as possible.” Id.see also Davis v. Davis, 749 P.2d 647, 649 (Utah 1988) (“The ultimate test of the propriety of an alimony award is whether, given all of these factors, the party receiving alimony will be able to support him- or herself as nearly as possible at the standard of living enjoyed during marriage.” (cleaned up)); Savage v. Savage, 658 P.2d 1201, 1205 (Utah 1983) (“One of the chief functions of an alimony award is to permit the parties to maintain as much as possible the same standards after the dissolution of the marriage as those enjoyed during the marriage.”). Rebecca testified that the marital standard of living included significant spending on her personal grooming. The court acted improperly when it discarded this evidence and substituted another amount without properly concluding that Rebecca’s evidence was inadequate or her expenses were unreasonable in light of the marital standard of living.

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

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

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

C.        Savings and Other Funds

1.         Savings Plan

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

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

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

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

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

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

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

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

2.         Retirement

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

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

3.         Additional Capital/Investment Funds

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

CONCLUSION

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

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

 

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In Re L.L.B. – 2023 UT App 66 – Termination of Parental Rights Reversed

In re L.L.B. – 2023 UT App 66

THE UTAH COURT OF APPEALS

IN THE INTEREST OF L.L.B.,

A PERSON UNDER EIGHTEEN YEARS OF AGE.

C.B. AND H.B.,

Appellees,

v.

J.B.,

Appellant.

Opinion

No. 20210942-CA

Filed June 15, 2023

Eighth District Court, Vernal Department

The Honorable Clark A. McClellan

No. 182800015

Emily Adams, Sara Pfrommer, Melissa Jo Townsend,

and Freyja Johnson, Attorneys for Appellant

Michael D. Harrington and Cameron M. Beech,

Attorneys for Appellees

  1. Erin Bradley Rawlings, Guardian ad Litem

JUDGE AMY J. OLIVER authored this Opinion, in which

JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred.

OLIVER, Judge:

¶1 C.B. (Mother) and H.B. (Stepfather) filed a petition seeking termination of J.B.’s (Father) parental rights to L.L.B. (Child) and adoption by Stepfather. After a one-day bench trial, the district court found four statutory grounds for termination. The court also concluded it was in Child’s best interest to terminate Father’s parental rights and that doing so was strictly necessary so Child could be adopted by Stepfather. Father appeals the district court’s conclusion that termination of his parental rights was in Child’s best interest, arguing it was not supported by clear and convincing evidence. We agree with Father that the evidence was insufficient and, therefore, reverse the district court’s ruling terminating Father’s parental rights.

BACKGROUND

¶2        Child was born in September 2009. Less than a week after her birth, Father relapsed on controlled substances and left Child and Mother. Shortly thereafter, Child and Mother moved from the Salt Lake City area to Vernal, Utah. In the months after Mother and Child moved to Vernal, Father saw Child twice—in December 2009 and in April 2010.

¶3        In April 2010, Mother and Father entered into a stipulated agreement of paternity. The decree awarded primary physical custody and sole legal custody to Mother with Father awarded parent-time. It also permitted Mother to request that Father submit to random urinalysis drug testing up to eighteen times a year.

¶4        For several years Father consistently exercised his rights to parent-time. Because Mother lived in Vernal with Stepfather, whom she married in 2013, and Father lived in Salt Lake City, the parties met in Fruitland, Utah to exchange Child. In July 2015, however, Mother and Father got into an argument during an exchange and Child immediately returned to Vernal with Mother and Stepfather. Mother testified that the same month as the confrontation in Fruitland, Child and Father were involved in a four-wheeler accident. For the next several weeks, Mother refused to permit Child to spend parent-time with Father because she was concerned Father had been drinking at the time of the accident. Parent-time resumed after Father sought an order to show cause in the paternity matter.[1] Beginning in April 2016, the parent-time was supervised by Father’s mother because Mother was concerned that Father was using drugs and alcohol around Child.

¶5        In August 2016, Mother and Father discussed the possibility of Father voluntarily relinquishing his parental rights. Mother testified Father was “on the fence” about the idea, and Father admitted he considered it for approximately two months. However, the parties were unable to reach a voluntary agreement. In 2018, Mother and Stepfather filed a Petition for Adoption/Termination of Parental Rights in district court. The petition listed the following grounds supporting the termination of Father’s parental rights: (1) Father abandoned Child, (2) Father neglected Child, (3) Father was an unfit parent, and (4) Father made only token efforts to be a fit parent. Father filed a handwritten response opposing the petition and later filed a counseled answer.

¶6        The district court held a one-day bench trial on November 5, 2021. Mother, Father’s ex-girlfriend (Ex-Girlfriend), Father’s mother, Father’s brother, and Father testified. A guardian ad litem (the GAL) appointed by the district court represented Child.

¶7        Mother’s testimony centered on Father’s lengthy absences from Child’s life, his history of failing to provide financial support for Child, and his past substance abuse. She testified that in February 2017, she asked Father to take a drug test, but he refused. In the months after that refusal, Father attempted to contact Child only twice—once in May 2017 and once more in December 2017. Nearly a year passed until Mother heard from Father again. As to Father’s history of supporting Child, evidence was presented that he made court-ordered child-support payments from 2010 through 2016, but the payments were not for the full amounts ordered. From 2017 forward, Father’s child-support payments totaled seventy-two dollars, and as of September 1, 2021, he was $51,011.25 in arrears. Mother testified that Father had never followed through with his many promises to pay child support, refrain from using drugs and alcohol, and re-establish a relationship with Child. She also testified he had never been involved in Child’s education. Mother admitted, however, that since the termination petition was filed, she had not responded to Father’s requests to see Child and had not told Child about the requests.

¶8        Ex-Girlfriend testified that she and Father dated from 2009 until 2016. She described his alcohol consumption during that period as progressing from weekends to daily. Ex-Girlfriend also testified that Father told her either in 2015 or 2016 that he was using crack cocaine and she found illegal substances in their home and car in 2016. She also confirmed Father was drinking the day he and Child were involved in the four-wheeler accident in July 2015. Ex-Girlfriend testified she now communicates with Father only to discuss matters concerning their daughter, Child’s half-sister (Half-Sister). According to Ex-Girlfriend, Father spends parent-time with Half-Sister and has “a strong relationship” with her. She also testified that Child and Half-Sister have a good relationship that is facilitated and encouraged by her and Mother.

¶9        Father’s mother testified about Father’s relationship with Half-Sister, describing it as a “great relationship” and calling him “a wonderful father.” She testified that she tries to stay in contact with Child, but recently has had difficulty getting responses from Mother. According to Father’s mother, Father’s family last saw Child at a family reunion in the summer of 2020. She stated that Father had substance abuse issues “off and on” from 2009 through 2019 but she was not aware of any substance abuse since 2019.

¶10      Father’s brother testified that “since [Father] put his life back together,” Father has been an “incredible father” and an “incredible uncle.” He also testified about the family reunion, stating Child attended the reunion and he saw her interact with Father. He stated they “spent a lot of time together and had a lot of fun.”

¶11      Father testified he saw Child “a lot” during the first five years of her life and had a good relationship with her. Thereafter, he saw Child off-and-on until August 2016, after which time he did not see her again until 2020 at the family reunion. He admitted their interactions at the reunion were “a little awkward at first” but testified they “ended up having a blast.” He testified he admitted to Child during the reunion that he had not been the best parent and apologized. According to Father, Child responded well to his apology and gave him a hug. Father testified he had not seen Child since the reunion, although he had written letters to Mother, sent a gift, and emailed Child.

¶12      Father admitted he had relapsed on controlled substances three or four times between 2009 and 2019, but testified he has been clean and sober since he went to jail in January 2019. Father testified he participated in drug court after a term of incarceration, calling it “awesome” and “one of the best things” he ever did. As part of drug court, he participated in outpatient treatment, community service, and drug testing. He testified he now works with at-risk children as a boxing coach and was now paying child support.

¶13 The GAL stated Child does not have a relationship with Father because he “wasted that relationship and allowed it to shrivel by his absence and his lack of effort to nourish it.” The GAL described Stepfather as “an excellent father” to Child and stated the two have “a great bond” and “a very close relationship.”

¶14 The district court entered detailed Findings of Fact and Conclusions of Law on December 3, 2021. The court concluded four statutory grounds for termination existed and the bulk of its ruling addressed those grounds. The court found Father abandoned Child by failing to maintain contact with her, neglected Child by not paying child support, and made only token efforts to support Child or communicate with her. Although the court found that Father was “a fit and proper parent” at the time of the hearing, it nevertheless concluded Father was unfit or incompetent for purposes of the statutory grounds for termination because he was unfit and incompetent for much of Child’s life.

¶15      The district court’s best-interest analysis was considerably shorter than its analysis of the statutory grounds for termination. The court identified and examined three factors: (1) whether another person was available to step into the parental role, (2) whether there was evidence Child had been harmed by her relationship with Father, and (3) whether Father’s extended family was a positive influence in Child’s life. Based on that analysis, the court ruled as follows: “The Child desires and deserves to have [a] healthy, stable family relationship with the person that has been and acts as her father figure. The Child’s interest will best be served if the adoption is allowed to move forward. . . . Because the adoption cannot occur without the termination of Father’s parental rights, the Court finds by clear and convincing evidence that it is ‘strictly necessary’ that Father’s rights be terminated.”

ISSUE AND STANDARD OF REVIEW

¶16 Father challenges the district court’s conclusion that termination of his parental rights was in Child’s best interest. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. A lower court’s best-interest ruling is reviewed deferentially but “we will not only consider whether any relevant facts have been left out but assess whether the . . . court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867 (cleaned up).

ANALYSIS

¶17 A court must make two findings before terminating a parent-child relationship:

First, a trial court must find that one or more of the statutory grounds for termination are present. . . . Second, a trial court must find that termination of the parent’s rights is in the best interests of the child. . . . The trial court must make both of these findings not merely by a preponderance of the evidence, but by clear and convincing evidence and the burden of proof rests with the petitioner.

In re B.T.B. (BTB I), 2018 UT App 157, ¶ 13, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827 (cleaned up). “A court may . . . terminate parental rights only when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B. (BTB II), 2020 UT 60, ¶ 66, 472 P.3d 827.

¶18 Mother and Stepfather argue that a district court is not required to undertake the strictly necessary part of the analysis when a petition is filed under the Adoption Act rather than the Termination of Parental Rights Act. Compare Utah Code § 78B-6-112(5)(e) (“The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.”), with Utah Code § 80-4-301(1) (“[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent . . . .”) (formerly codified at § 78A-06-507(1)). But we need not address Mother and Stepfather’s argument, because even without considering the strictly necessary part of the best-interest analysis dictated by the Termination of Parental Rights Act, we conclude, below, that there is not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest.

¶19 Father first argues the court erred in finding he was an unfit or incompetent parent as a ground for termination because, in his view, the statute requires a finding based on current ability rather than past conduct, and the court found him to be a fit parent at the time of the trial. But Father concedes that three other statutory grounds for termination exist. Because the finding of just one statutory ground for termination is sufficient, it is unnecessary to address Father’s argument as to the fitness ground. See id. § 80-4-301(1); In re S.M., 2017 UT App 108, ¶ 4, 400 P.3d 1201 (per curiam) (“[T]he finding of a single ground will support termination of parental rights.”).

¶20      Father next argues that Mother and Stepfather—the parties seeking termination of his parental rights—failed to present clear and convincing evidence that termination of his parental rights was in Child’s best interest. See BTB II, 2020 UT 60, ¶ 52. He does not challenge any of the district court’s findings as clearly erroneous, but asserts that those findings and the evidence underpinning them do not support the court’s ruling. In Father’s view, the only support for the district court’s ruling was Mother’s testimony that Stepfather and Child love and care for each other and the report of the GAL stating that Child (1) was not comfortable around Father, (2) had a close relationship with Stepfather, and (3) wanted to be adopted by Stepfather.

¶21 The best-interest inquiry “is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 29 (cleaned up). The lower court must consider the “physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” BTB I, 2018 UT App 157, ¶ 47 (cleaned up). The analysis is undertaken from the child’s point of view. BTB II, 2020 UT 60, ¶ 64. In making the best-interest determination in this matter, the district court analyzed whether there was (1) another person available to step into the parental role, (2) evidence Child had been harmed by the relationship with Father, and (3) a positive role that Father’s extended family played in Child’s life. After considering these three factors,[2] the district court concluded that termination of Father’s parental rights and adoption by Stepfather was in Child’s best interest because she “desires and deserves to have a healthy, stable family relationship with the person that has been and acts as her father figure.” But the record does not contain clear and convincing evidence supporting this conclusion that termination of Father’s parental rights was in Child’s best interest.

¶22      As to whether another person was available to step into the parent role, the district court detailed evidence showing Child loves Stepfather and Stepfather has been a positive presence in Child’s life for many years. It was undisputed that Child has lived with Mother and Stepfather since 2013. The GAL told the district court that Child “is consistent in her desire to be adopted” by Stepfather, has a close relationship with him, and does not view Father as a father figure. The court found Child wants to be adopted by Stepfather and the two have an excellent relationship. But there was no evidence that this relationship will not continue if Father’s rights are not terminated and the adoption does not occur.

¶23 Mother and Stepfather suggest that “failing to terminate Father’s parental rights so that Stepfather can adopt inherently leaves the Child’s relationship with Stepfather, and possibly the Child’s siblings and extended family, vulnerable to termination at any time by . . . Mother’s death.” But such a concern is present in many termination cases, and it does not necessarily lead to the conclusion that termination of a parent’s rights is in the child’s best interest. As our supreme court has explained, “categorical concerns” about the lack of permanence of an option other than adoption are not enough, otherwise “termination and adoption would be strictly necessary across the board.” In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606.

¶24      When considering whether Child had been harmed by the relationship with Father, the court found that Child does not have a relationship with Father and noted Child has expressed some concern for her safety when she is with him. There was no finding, however, that Father’s presence in her life has affirmatively harmed Child. The GAL told the court that Child does not have a comfortable relationship with Father and “there’s a certain level of fear.” But the GAL did not explain or expound on the root of this fear. Further, there was no finding detailing how Child’s life was negatively affected or disrupted by Father’s attempts to exercise his parental rights. There is evidence Father has emailed Child a handful of times since the termination petition was filed, but there was no testimony or other evidence that these emails had any negative effect on Child’s general welfare or happiness.[3] Father also sent communications to Mother asking for an opportunity to meet with Child, but Mother testified she did not respond and did not put Father in contact with Child because Child would not be receptive. Mother’s testimony, however, did not discuss the effects Father’s past attempts at reconciliation had on Child or provide an explanation of why she believed Child would not want to see Father. In short, there is no evidence showing Father’s presence in Child’s life has a negative effect on her happiness and well-being.

¶25 Regarding Child’s relationship with Father’s extended family, the court found that Child has had a relationship with Father’s mother for all her life and the relationship is important to Child. There was also evidence that Child has a strong bond with Half-Sister. Several witnesses testified about Child’s attendance at Father’s family reunion in the summer of 2020. Mother testified that Child called her and was “begging to stay with her cousins.” Father’s brother testified there was some initial awkwardness between Child and Father at the reunion “but they spent a lot of time together and had a lot of fun.” The district court described the weekend as a “huge success” and “enjoyable and successful.” Based on this evidence, the district court found that Child currently has positive and beneficial relationships with Father’s extended family, including Half-Sister and Father’s mother.

¶26 The district court found that Child’s relationships with Father’s extended family would be adversely affected to some extent if Father’s parental rights were terminated and Child was adopted by Stepfather, and then it purported to compare those effects to the benefits Child would glean from a relationship with Stepfather and his family. But there was no evidence presented identifying those benefits or explaining how Child’s ability to maintain relationships with Stepfather and his family would be negatively affected if she was not adopted.

¶27      Despite the district court’s statement that termination was in Child’s best interest because she deserves to have a healthy and stable family relationship, the court made no finding that Child’s current living situation was not healthy and stable. Nor did the court make any finding that her living situation will change in any way if she is not adopted. See BTB I, 2018 UT App 157, ¶ 56. (“[T]he absence of any proposed change in the child’s custody or living situation is a factor that may weigh against termination in some cases . . . .”).

¶28      In sum, the evidence on which the district court relied does not clearly and convincingly demonstrate that termination of Father’s parental rights was in Child’s best interest.

¶29 Other evidence before the district court further undermines, rather than supports, the district court’s ruling that termination of Father’s parental rights was in Child’s best interest. Most obvious and significant is the court’s finding that “Father is presently fit and capable as a parent.” This finding was based on evidence that Father was clean and sober at the time of the termination trial and had been for more than two years. See In re B.R., 2007 UT 82, ¶ 13, 171 P.3d 435 (“In termination cases, the . . . court must weigh a parent’s past conduct with her present abilities.”). Father testified he has made many attempts to communicate with Child since his release from incarceration in 2019 and many of those communications were introduced at trial.

¶30 As we have explained, “in making its best-interest determination, . . . especially in cases (like this one) initiated by private petition, it is important for courts to carefully assess a parent’s efforts to improve and, if the court remains unpersuaded that the parent’s situation has sufficiently changed for the better, to specifically set forth reasons why it remains unpersuaded.” In re J.J.W., 2022 UT App 116, ¶ 30, 520 P.3d 38 (cleaned up). But the district court wasn’t unpersuaded that Father had improved his situation for the better. To the contrary, it was persuaded that Father had successfully addressed his problems with controlled substances and found that “Father is presently fit and capable as a parent.”

¶31 The Utah legislature “has made clear that, as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” BTB II, 2020 UT 60, ¶ 65 (cleaned up). The district court’s order contains no analysis of why it was in the best interest of Child to terminate the parental rights of a fit and capable Father in order to be adopted by Stepfather.

¶32 The record also indicates Father currently considers Child’s needs when he makes decisions on her behalf. For example, the district court’s order contains details surrounding Child’s desire to participate in a religious ceremony with Mother, Stepfather, and their other children. The court found that Father was at first reluctant to consent to Child’s participation but relented when he learned Child strongly desired to participate.

¶33      Nearly all the evidence presented at trial was offered in support of the statutory grounds for termination—not the best-interest inquiry. Although the district court was free to consider the evidence supporting the statutory grounds for termination when conducting the best-interest analysis, almost none of that evidence focused on Child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness” as required under the holistic approach. BTB I, 2018 UT App 157, ¶ 47 (cleaned up). And, as explained above, the evidence that did address Child’s best interest largely countered, rather than supported, the conclusion that termination of Father’s parental rights was in her best interest.

¶34      Thus, we are convinced the district court’s conclusion that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence.

CONCLUSION

¶35      Because the district court’s ruling that termination of Father’s parental rights was in Child’s best interest goes against the clear weight of the evidence, we reverse and remand with instruction to vacate the order terminating Father’s parental rights.

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

[1] Mother testified she permitted Child to spend time with Father after he sought court intervention because she was afraid she “would get put in jail for not allowing the visitations.”

[2] It is unclear why the district court focused exclusively on these three particular factors. Under the required holistic approach, there is no exhaustive list of relevant factors and no one factor deemed relevant by a court is determinative on the question of a child’s best interest. See In re J.P., 2021 UT App 134, ¶ 14, 502 P.3d 1247 (“While courts have identified factors relevant to the best-interest determination, the list is non-exhaustive.”); In re G.J.C., 2016 UT App 147, ¶ 24, 379 P.3d 58 (setting out a non-exhaustive list of factors a court may consider), abrogated on other grounds by In re B.T.B., 2018 UT App 157, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827.

[3] Child responded to only one of Father’s emails. On September 2, 2020, she sent an email simply stating, “Love you.”

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2023 UT App 57 – State v. Schroeder

2023 UT App 57 – State v. Schroeder

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL SCHROEDER,

Appellant.

Opinion

No. 20190339-CA[1]

Filed May 25, 2023

Fifth District Court, Cedar City Department

The Honorable Troy A. Little

No. 191500104

Trevor J. Lee, Attorney for Appellant

Shane Klenk, Attorney for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which

JUDGE MICHELE M. CHRISTIANSEN FORSTER and

SENIOR JUDGE KATE APPLEBY concurred.[2]

ORME, Judge:

¶1        Following a consolidated bench trial, the court found Michael Schroeder guilty on three charges of protective order violations and one charge of criminal stalking, all class A misdemeanors. Schroeder now appeals, primarily contending that there was insufficient evidence to establish his guilt beyond a reasonable doubt on the convictions still at issue in this appeal.[3]

¶2        We conclude that Schroeder’s convictions for violations of a protective order are supported by sufficient evidence and affirm those convictions. But we conclude that Schroeder’s conviction for stalking is against the clear weight of the evidence developed at trial in support of that charge and therefore reverse that conviction.

BACKGROUND[4]

¶3        After Michael Schroeder and Samantha[5] ended their romantic relationship in 2018, Samantha sought a protective order against Schroeder. On August 13, 2018, Utah’s Fifth District Court held a protective order hearing. Because Schroeder was present and because he did not object to the protective order becoming permanent, the court signed and served the Protective Order, which required Schroeder to refrain from contacting Samantha, to stay at least 1,000 feet from her, and to stay away from her home.

September 23 Protective Order Charge

¶4        During the bench trial, Samantha, her friend, a police officer, and Schroeder each testified about an event that took place on September 23, 2018. Schroeder testified that on that day, he drove his truck through the city where he and Samantha lived and inadvertently turned onto Samantha’s street. After turning onto the street, he suddenly recognized where he was and further realized that if he maintained his course, he would ultimately pass Samantha’s home. He also recognized that driving past her home may violate the Protective Order, but he was not certain. Although he contemplated turning around to avoid passing Samantha’s home, he testified that he chose to continue driving down her street.

¶5        When Schroeder approached Samantha’s home, Samantha was sitting outside with a friend. She and her friend testified that they saw the truck approaching and recognized the truck as belonging to Schroeder. Samantha testified that she saw the truck slow down to almost a stop in front of her home. She was able to identify Schroeder as the driver of the truck through the truck’s open window. Samantha further testified that Schroeder stared at her and made “complete eye contact” with her before driving off. Samantha estimated that she was “maybe 20 feet” from where Schroeder drove past. Her friend testified that he too had been able to identify Schroeder through the truck’s open window. The friend further corroborated Samantha’s testimony that when Schroeder passed Samantha’s home, he was “maybe 20” or “25 feet” from their position and that Schroeder had slowed down to a stop and stared at them for “a few seconds” before driving off.

¶6        Samantha called the police and reported what had happened. An officer arrived and spoke with Samantha and her friend, then contacted Schroeder and met with him at his residence. Schroeder explained that he had made a wrong turn onto Samantha’s street, thought about turning around, made the decision not to, and then proceeded to drive past Samantha’s home. Schroeder also told the officer that he did not know the conditions of the Protective Order.

¶7        Soon after this event, the State filed an Information and Affidavit of Probable Cause against Schroeder, charging him with a protective order violation for coming within 1,000 feet of Samantha.

January 7 Protective Order Violation Charge and Stalking Charge

¶8        During the bench trial, Samantha and Schroeder also testified regarding an event that took place on the morning of January 7, 2019. Samantha testified that she was with her dog in front of her home when she heard a diesel truck approaching the cross street at the end of the block, three houses away. The distinctive sound of a diesel engine caused her to look up, and she saw Schroeder’s truck slowly driving by on the cross street. Samantha recounted that she made eye contact with Schroeder and shook her head at him before he drove off. When she went back inside her home, she again called the police and reported what happened. Samantha stated that she is “really . . . not good” with estimating distances, but she estimated she was “maybe 35 feet” from where she saw Schroeder. Schroeder denied having any knowledge of this incident and suggested that Samantha might have seen “some other gray truck” and confused it with his truck.

¶9        Following this incident, the State filed an Information and Probable Cause Statement against Schroeder, charging him with a violation of the Protective Order’s prohibition on coming within 1,000 feet of Samantha and also charging him with criminal stalking. The State predicated the stalking charge on events specified in the charging documents, discussed in more detail below.

Consolidated Trial

¶10      All cases and charges addressed in this appeal came before the trial court in a consolidated bench trial on April 4, 2019. In its case addressing the September 23 protective order violation, the State called Samantha, her friend, and the officer as witnesses. They testified as outlined above, and Schroeder testified in his defense but did not call other witnesses or present any other evidence. Following the trial, the court expressly found all the State’s witnesses to be credible. The court found that Schroeder had been properly served the Protective Order because he was present when the Protective Order was issued and did not object to its issuance. The court further found that because Schroeder recognized that he was driving down Samantha’s street and chose not to alter his course, he intentionally violated the Protective Order. Based on those findings, the trial court found Schroeder guilty of the protective order violation that occurred on September 23, 2018.

¶11      With respect to the January 7 protective order violation, the court found that the State presented sufficient evidence that Schroeder drove by on the adjacent street—which it found to be less than 1,000 feet away from Samantha—and that, while passing, Schroeder slowed down enough to stare at Samantha and for Samantha to identify him and shake her head at him. The court acknowledged that if Schroeder had just driven down the adjacent street and neither slowed down nor stared at Samantha, this likely would have been insufficient to support a protective order violation. But because he was driving down a street close to where he knew Samantha’s home to be and had slowed and stared at her while he passed, his actions were sufficient to amount to a violation of the Protective Order.

¶12 Regarding the stalking charge, the State specified the following three events in the Probable Cause Statement as the basis for the charge: (1) an alleged incident on January 6, 2019, at a local smoke shop; (2) the January 7 protective order violation; and (3) an alleged drive-by incident that occurred a few hours after the January 7 protective order violation. At trial, while the State presented evidence of the January 7 protective order violation, the State did not present any evidence of the other two events specified in the charging documents.

¶13      After both parties rested and presented closing arguments, the court determined that the September 23 and January 7 acts “were clearly course of conduct acts” that could and did cause Samantha “emotional distress and fear.” Thus, contrary to the State’s theory set out in the charging documents and not developed at trial, the court combined the September 23 and January 7 episodes to establish the proscribed course of conduct under the stalking statute.

¶14 Schroeder was convicted on all counts. This appeal followed.

ISSUE AND STANDARD OF REVIEW

¶15 Schroeder argues that there was insufficient evidence to prove his guilt beyond a reasonable doubt. “Unlike challenges to a jury verdict, a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). “[W]e review a claim of insufficient evidence at a bench trial for clear error,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755, meaning we “must sustain the district court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made,” Holland, 2018 UT App 203, ¶ 9 (quotation simplified)In other words, “before we can uphold a conviction it must be supported by a quantum of evidence concerning each element of the crime as charged from which the factfinder may base its conclusion of guilt beyond a reasonable doubt.” Spanish Fork City v. Bryan, 1999 UT App 61, ¶ 5, 975 P.2d 501 (emphasis added) (quotation otherwise simplified).

ANALYSIS

  1. Protective Order Violations

¶16      Schroeder asks us to conclude that the trial court erred in finding him guilty of the September 23, 2018 and the January 7, 2019 protective order violations. He contends that there was insufficient evidence from which the court could find him guilty beyond a reasonable doubt. See generally State v. Austin, 2007 UT 55, ¶ 6, 165 P.3d 1191. We address each of the court’s rulings in turn.

  1. September 23 Protective Order Violation

¶17 Schroeder contends that the State did not produce sufficient evidence regarding Schroeder’s mental state when he drove past Samantha and her friend in front of Samantha’s home. As outlined by our Supreme Court, “when reviewing a bench trial for sufficiency of the evidence, we must sustain the trial court’s judgment unless it is against the clear weight of the evidence, or if we otherwise reach a definite and firm conviction that a mistake has been made.” State v. Gordon, 2004 UT 2, ¶ 5, 84 P.3d 1167 (quotation simplified). “An example of an obvious and fundamental insufficiency is the case in which the State presents no evidence to support an essential element of a criminal charge.” State v. Prater, 2017 UT 13, ¶ 28, 392 P.3d 398 (quotation simplified).

¶18      It is a violation of a protective order and “a class A misdemeanor,” Utah Code Ann. § 76-5-108(3) (LexisNexis Supp. 2022), when a defendant “intentionally or knowingly violates [an] order after having been properly served or having been present, in person or through court video conferencing, when the order was issued,” id. § 76-5-108(2)(b). Schroeder concedes that he was properly served with the Protective Order on August 13, 2018, and was aware of its existence. Therefore, what remains for us to decide is whether the State adduced sufficient evidence that Schroeder was aware of the Protective Order and that he “intentionally or knowingly” violated it. See id. In reviewing the sufficiency of the evidence, we are mindful that “credibility is an issue for the trier of fact.” Zappe v. Bullock, 2014 UT App 250, ¶ 8, 338 P.3d 242 (quotation simplified).

¶19      At trial, Schroeder conceded that he intentionally drove his truck past Samantha’s home after deciding not to turn around so as to avoid doing so. He recounted, “As soon as I turned on the road and realized what was going on, like I was going to flip around and then just kept on going through.” He also acknowledged that he came within 1,000 feet of Samantha’s home. Accordingly, we conclude that there was sufficient evidence to support the conviction. We further conclude that the trial court’s findings were not against the clear weight of the evidence and affirm Schroeder’s conviction regarding the September 23 protective order violation.

  1. January 7 Protective Order Violation

¶20 Schroeder next contends that the State did not provide sufficient evidence on which the trial court could determine, beyond a reasonable doubt, that he slowed down and stared at Samantha as he drove by on the cross street three houses away from her home.

¶21      At trial, the court appropriately recognized that simply driving down a cross street near Samantha’s home would “not necessarily be a violation” of the Protective Order. But the court found that Schroeder did not simply drive down the cross street, minding his own business. Instead, based on Samantha’s testimony, which the court found to be credible, the court found that Schroeder slowed and stared at Samantha as he drove past. Samantha’s testimony included her estimation, apparently found reasonable by the trial court, that she was less than 1,000 feet from the cross street when Schroeder slowed and stared at her.

¶22 Therefore, there was sufficient evidence to support the conviction, and the trial court’s findings were not against the clear weight of the evidence. Accordingly, we also affirm Schroeder’s conviction regarding the January 7 protective order violation.

  1. Stalking Conviction

¶23 Schroeder contends that the evidence supporting his stalking conviction was insufficient to establish the necessary course of conduct as charged by the State and that his conviction was therefore against the clear weight of the evidence.[6] We agree.

¶24      “Article I, section 12 of the Utah Constitution provides that every criminal defendant has a right to know ‘the nature and cause of the accusation.’” State v. Burnett, 712 P.2d 260, 262 (Utah 1985) (quoting Utah Const. art. I, § 12). “This entitles the accused to be charged with a specific crime, so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.” Id. Additionally, rule 4 of the Utah Rules of Criminal Procedure provides that “[a] prosecution may be commenced by filing an information,” Utah R. Crim. P. 4(a), which must contain “the name given to the offense by statute or ordinance, or stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge,” id. R. 4(b)(2). And an information charging a felony or a class A misdemeanor must include “a statement of facts sufficient to support probable cause for the charged offense or offenses.” Id. R. 4(c)(1). Our Supreme Court has stated that “in a criminal proceeding . . . [the accused] is entitled to be charged with a specific crime so that he may know the nature and cause of the accusation against him” and that “the State must prove substantially as charged the offense it relies upon for conviction.” State v. Taylor, 378 P.2d 352, 353 (Utah 1963) (quotation simplified). This did not happen here with respect to the stalking charge.

¶25      The charging documents concerning the stalking charge alleged, in contemplation of section 76-5-106.5(2) of the Utah Code, as follows:

[Schroeder], on or about January 07, 2019, in Iron County, State of Utah, did (a) intentionally or knowingly engage in a course of conduct directed at [Samantha] and knew or should have known that the course of conduct would cause a reasonable person: (i) to fear for the person’s own safety or the safety of a third person; or (ii) to suffer other emotional distress[.]

¶26 Under section 76-5-106.5(2), an actor commits the offense of stalking when the actor “intentionally or knowingly . . . engages in a course of conduct” that “would cause a reasonable person . . . to fear for the individual’s safety” or “to suffer other emotional distress.” Utah Code Ann. § 76-5-106.5(2) (LexisNexis Supp. 2022). The statute also explains that a course of conduct comprises “two or more acts directed at or toward a specific individual,” id. § 76-5-106.5(1)(a)(i), and further defines emotional distress as “significant mental or psychological suffering, whether or not medical or other professional treatment or counseling is required,” id. § 76-5-106.5(1)(a)(ii)(A).

¶27 The Probable Cause Statement indicated that the stalking charge in this case was based on a course of conduct consisting of an event occurring “[oin or about January 6, 2019,” an event occurring the “following morning on January 7, 2019, between 8:00 a.m. and 9:00 a.m.,” and an event occurring “[liater that morning” on January 7, 2019. The charging documents concerning the stalking offense made no mention of the September 23 incident.

¶28      At trial, the State presented evidence only of the January 7 event. The State did not present any evidence addressing either of the other two events specified in the charging documents as establishing the requisite course of conduct for stalking. Accordingly, Schroeder had no reason to introduce controverting evidence when presenting his defense.

¶29      Following closing arguments, the trial court made findings of fact and entered its ruling. The court found Schroeder guilty of stalking based on its finding that the January 7 protective order violation and the September 23 protective order violation “were clearly course of conduct acts.”

¶30 Schroeder does not challenge the court’s finding that the January 7 protective order violation, included in the charging documents, could be a qualifying act to partially establish a stalking course of conduct. And the State presented sufficient evidence of its occurrence at trial. See supra Part I.B. But the State did not produce evidence concerning the other two incidents referred to in the Probable Cause Statement, and it never argued that the September 23 incident was relevant to the stalking charge, nor did it seek to amend the charging documents to incorporate that theory. Thus, by the end of trial, the State had established only one of the two or more incidents required to prove the stalking offense it charged. Because evidence is necessarily insufficient when the State fails to establish “an essential element of a criminal charge,” State v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (quotation simplified), we reverse Schroeder’s conviction for stalking.[7]

CONCLUSION

¶31      The trial court’s judgments were not against the clear weight of the evidence regarding Schroeder’s two convictions for the protective order violations. Therefore, we affirm Schroeder’s convictions regarding the September 23 protective order violation and the January 7 protective order violation. But because the State did not present evidence of any act specified in the relevant charging documents as constituting stalking, apart from the January 7 protective order violation, and because stalking is predicated on a course of conduct comprising two or more acts, the evidence was necessarily insufficient. Therefore, Schroeder’s stalking conviction was against the clear weight of the evidence, and we reverse that conviction.

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

 

[1] This case is the consolidated appeal of cases 20190339-CA, 20190507-CA, and 20190508-CA.

[2] Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[3] During the pendency of this appeal, Schroeder filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure on a claim of ineffective assistance of counsel he asserted in connection with his conviction for a protective order violation that was alleged to have occurred on January 26, 2019. We granted that motion. In March 2022, following a hearing on Schroeder’s rule 23B motion, the trial court granted the parties’ Stipulated Motion to Dismiss Charge with Prejudice. By so doing, the court dismissed the case concerning Schroeder’s January 26 protective order violation. For that reason, we do not discuss the events surrounding that charge, which is no longer at issue in this appeal.

[4] Following a bench trial, “we recite the facts from the record in the light most favorable to the findings of the trial court and present conflicting evidence only as necessary to understand issues raised on appeal.” State v. Cowlishaw, 2017 UT App 181, ¶ 2, 405 P.3d 885 (quotation simplified).

[5] A pseudonym.

[6] As previously noted, “a defendant need not file a separate motion or make a separate objection to challenge the sufficiency of the evidence supporting the court’s factual findings in a bench trial.” State v. Holland, 2018 UT App 203, ¶ 9, 437 P.3d 501, cert. denied, 437 P.3d 1252 (Utah 2019). When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised on appeal regardless of whether the party raising the question has made an objection to such findings via a motion or otherwise. See State v. Jok, 2021 UT 35, ¶ 18, 493 P.3d 665 (noting that “a sufficiency of the evidence claim is effectively preserved by the nature of a bench trial and does not require making a specific motion”).

[7] Schroeder additionally argues that the trial court’s sua sponte reconstruction of the stalking charge, following trial, in which it embraced a theory of stalking not charged, was at odds with the variance doctrine. The variance doctrine prevents the State from introducing evidence at trial that varies from the charging documents where the variance would prejudice a defendant’s case. See State v. Fulton, 742 P.2d 1208, 1215 (Utah 1987). While we premise our affirmance on the more straightforward rationale that there was insufficient evidence to establish the stalking offense as charged by the State, we recognize that our reversal of that conviction also advances the salutary purposes served by the variance doctrine.

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Mintz v. Mintz – 2023 UT App 17

Mintz v. Mintz – 2023 UT App 17

THE UTAH COURT OF APPEALS

RAYNA ELIZABETH MINTZ,

Appellant and Cross-appellee,

v.

GLEN RYAN MINTZ,

Appellee and Cross-appellant.

Opinion

No. 20200507-CA

Filed February 9, 2023

Third District Court, Silver Summit Department

The Honorable Kent R. Holmberg

No. 174500034

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

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

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

MORTENSEN, Judge:

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

BACKGROUND[3]

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

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

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

ANALYSIS
I. Alimony

A.        Investment

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

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

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

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

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

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

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

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

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

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

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

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

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

B.         Entertainment

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

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

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

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

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

II. Book of Business

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

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

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

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

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

Another read,

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

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

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

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

III. Dissipation

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

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

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

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

IV. Property Distribution Appreciation

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

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

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

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

V. Investment Income

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

 

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

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

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

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

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

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

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In Re A.H. – 2022 UT App 114 – Termination of Parental Rights

2022 UT App 114

THE UTAH COURT OF APPEALS

STATE OF UTAH, IN THE INTEREST OF

A.H., J.H., J.H., L.H., N.H., S.H., AND E.H., PERSONS UNDER EIGHTEEN YEARS OF AGE.

N.J.H. AND S.H., Appellants, v. STATE OF UTAH, Appellee.

Opinion

Nos. 20210353-CA and

20210354-CA

Filed October 6, 2022

Fourth District Juvenile Court, Provo Department

The Honorable Suchada P. Bazzelle No. 1145453

Alexandra Mareschal, Attorney for Appellant N.J.H.

Kirstin H. Norman, Attorney for Appellant S.H.

Sean D. Reyes, Carol L.C. Verdoia, and John M.

Peterson, Attorneys for Appellee

Martha Pierce, Guardian ad Litem

JUDGE RYA N M. HARRIS authored this Opinion, in which

JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred.[1]

HARRIS, Judge:

¶1 After a bench trial, the juvenile court terminated S.H.’s (Mother) and N.J.H.’s (Father) (collectively, Parents) parental rights regarding the two youngest of their seven children: A.H. and L.H. (the Subject Children). The court did not terminate Parents’ rights regarding their other five children; it accepted the parties’ stipulation that the best interest of those children would be served by placing them in a guardianship with relatives. But despite those same relatives being willing to take and care for (by either adoption or guardianship) the Subject Children as well, the court determined that the Subject Children’s best interest would be served by termination of Parents’ rights and adoption by their foster parents. In separate appeals that we consider together in this opinion, Parents challenge that decision, asserting that termination of their rights was neither strictly necessary nor in the best interest of the Subject Children. We agree and reverse.

BACKGROUND

¶2 Mother and Father are the parents of seven children (the Children), each born approximately two years apart. The eldest (E.H.) was born in 2005, and the two youngest (A.H. and L.H.) were born in February 2015 and December 2016, respectively. Mother is the biological parent of all seven of the Children. Father is the biological parent of the six youngest Children and the legal parent of all of them; he adopted E.H. when E.H. was an infant. Mother and Father met in New Mexico, which is where the parents of E.H.’s biological father (Grandparents) live.[2] Parents moved to Utah, with the Children then born, in 2007.

¶3 Over the years, Grandparents developed a close relationship not only with E.H.—their biological grandson—but with the other Children as well. They made trips to Utah on at least an annual basis during which they spent time with the Children, and they engaged in regular telephonic contact as well. After L.H. was born in 2016, he required a lengthy stay in the newborn intensive care unit, and Grandmother took three weeks off from her job as a nurse to come to Utah and help.

¶4 In June 2017, the Division of Child and Family Services (DCFS) filed a petition for protective supervision, asserting that Father had physically abused N.H., one of the older sons, and that L.H.—who was then just a few months old—was malnourished and failing to thrive. DCFS’s plan, at that point, was to leave the Children in the home and provide supportive services. After adjudicating N.H. abused as to Father and the other Children neglected as to Father, the juvenile court granted DCFS’s requested relief and ordered that Father have only supervised contact with the Children. For the time being, the Children remained in the home under Mother’s care.

¶5 In August 2017, however, DCFS filed a petition seeking custody of the Children, citing not only the issues raised in its previous petition but also a more recent incident involving Mother and L.H. In response to a report of reckless driving, police found Mother slumped over the steering wheel of her parked car with L.H. in the backseat, and a search of the vehicle turned up several prescription medications in a container not intended for prescriptions, as well as a red straw with “white powder” inside it. Police arrested Mother on suspicion of, among other things, impaired driving; she was later able to provide prescriptions for all the medications found in the car.

¶6 After a hearing, the court granted DCFS’s requested relief and placed the Children in the temporary custody of DCFS. The Children were removed from Mother’s care later that same day and, when caseworkers went to the home to effectuate the court’s order, they observed Mother “wobbling back and forth” and having “a hard time keeping her eyes open.” Initially, DCFS caseworkers—with Mother’s agreement—arranged a safety plan in which Mother would leave the home and the Children would stay there, in their familiar environment, cared for by Mother’s brother. But Mother knowingly failed to follow that plan, and returned to the home without permission two days later. As a result of Mother’s actions, DCFS removed the Children from the home and placed them in a group home for children.

¶7 But that placement was temporary, and DCFS eventually needed to move the Children to foster care placements. But because no available foster care placement could accommodate all seven Children, DCFS found it necessary to split the Children up into three different placements. The oldest two were placed in one foster home, the next three in a second, and the Subject Children in a third. Three months later, the oldest two were placed with a paternal aunt. For almost a year, the seven Children were separated into these three groups, and the different groups saw each other only during Parents’ supervised parent-time; they were sometimes permitted to call each other, but DCFS did not facilitate any in-person sibling visitation during this period.

¶8 At later hearings, the juvenile court adjudicated the children neglected as to Mother. The court noted L.H.’s “failure to thrive” and the incident involving the parked car, as well as Mother’s criminal history—which involved both drug crimes and retail theft—and her “history of mental health issues that [could] place the [C]hildren at risk of harm.” Despite these concerns, however, the goal remained reunification and, over the ensuing months, Parents complied with the court’s direction well enough that, by July 2018, the family was able to reunify in the home. For the next nine months, the family was together—for the most part[3]—and doing reasonably well, and DCFS anticipated that it might be able to close the case in the spring of 2019. But three events occurred in early 2019 that prompted DCFS to reconsider.

¶9 First, in March 2019, Father injured two of the older Children, and DCFS made a supported finding of physical abuse by Father. In the wake of this incident, and in an effort to avoid a second removal of the Children from the home, Father agreed to move out and to have only supervised visits with the Children. When caseworkers visited the home following Father’s departure, they became concerned about Mother’s ability to care for the Children on her own; in particular, caseworkers observed several incidents in which Mother left the younger Children unattended.

¶10 Second, in late April 2019, police were called to the home at 1:54 a.m. and found L.H., then just two years old, alone in the family car, which was parked in front of the house. Mother explained that she had been out shopping, gotten home late, and then taken a phone call while L.H. was still out in the car asleep.

¶11 Third, in early May 2019, Mother had an encounter with police while in her car at a fast-food restaurant. Officers observed Mother responding quietly and slowly to questions, and they discovered in the car a plastic bag and an unlabeled prescription bottle containing pills later identified as controlled substances. In addition, officers found a razor blade with white residue and a rolled-up dollar bill in the vehicle, evidence that suggested Mother had been misusing the drugs. Mother passed a field sobriety test, and officers later determined that she had valid prescriptions for the pills.

¶12 Following these incidents, DCFS filed a new petition, again seeking to remove the Children from the home and place them in state custody. The juvenile court again adjudicated the Children abused and neglected as to each Parent, and again placed them into the custody of DCFS. The Children were extremely emotional when they learned of the court’s order removing them from the home for a second time; in fact, officials even had to use physical force to restrain two of the older sons when the time came to take them into custody. This time, the seven Children were sent to four placements: one of the older sons was placed in a short-term behavioral health facility because of his aggressive behavior during the removal; two of the older sons were placed together; and the two next-oldest sons and the Subject Children were returned to their respective previous foster placements. Just a few weeks later, six of the Children—all but the oldest—were placed together with a single foster family in a different county, but this short reunion lasted only about two months.

¶13 In August 2019, with the school year approaching, Parents requested that the Children be returned to Utah County, a request that again required the Children to be split up. This time, the two oldest were placed together; the next three were placed together in a new placement; and the Subject Children were—for the first time—placed with the family (the Foster Family) who now wishes to adopt them.[4] The Subject Children bonded very quickly with Foster Family, calling the parents “mom and dad” within just a few weeks of being placed with them. Still, the primary goal remained reunification, and the court ordered additional reunification services. However, DCFS still did not facilitate any sibling visitation, but “left that mostly up to [the] foster parents.” Although the foster families initially managed “a few meet-ups on their own,” these efforts diminished over time, despite the absence of any indication that the Children—including the Subject Children—did not want to see each other.

¶14 At a court hearing in July 2019, shortly after the second removal, Mother’s attorney requested that Grandparents—who were and remain willing to take all seven of the Children—be considered as a possible placement. The court was open to this suggestion but, because Grandparents reside in New Mexico, the court ordered DCFS to “initiate an ICPC[5] as to” Grandparents. But DCFS delayed acting upon the court’s order for nearly four months, until late October 2019. DCFS attributed the delay, in part, to inadvertence related to a caseworker switch that was occurring right then, but the new caseworker later testified that her “understanding” of the situation was that DCFS “made a decision not to proceed” with the ICPC process “because reunification services were still being offered.” Owing at least in part to the four-month delay in getting it started, the ICPC report was still not completed by the beginning of the eventual termination trial in October 2020. On the third day of trial, a DCFS witness explained that New Mexico had just finished its end of the process and had given its “approval” the day before, and that DCFS had filled out its final form the night before.

¶15 The ICPC report, when it was finally completed, raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. Indeed, one of the DCFS caseworkers testified at trial that she had “no concerns directly about [Grandparents] and their ability to be a safe home.” But none of the Children were actually placed with Grandparents until October 2020, due in large part to the delays associated with completion of the ICPC report.

¶16 For several months following the second removal of the Children from the home, the primary permanency goal remained reunification, and DCFS continued to provide reunification services to the family. But in the fall of 2019, after yet another substance use incident involving Mother, DCFS became dissatisfied with Parents’ progress and asked the court to change the primary permanency goal. At a hearing held at the end of October 2019, the court agreed, terminated reunification services, and changed the primary permanency goal to adoption with a concurrent goal of permanent custody and guardianship. A few weeks later, the State filed a petition seeking the termination of Parents’ rights with regard to all seven Children.

¶17 The court originally scheduled the termination trial to occur at the end of February 2020, but the State requested a continuance because it was working on placing the Children with Grandparents, was waiting for the ICPC report, and wanted “to ensure [that] the Grandparents kn[ew] what they [were] getting into.” The court granted the State’s requested continuance and rescheduled the trial for the end of March 2020. On March 12— the day before all “non-essential” court hearings in Utah were postponed by administrative order[6] due to the emerging COVID19 pandemic—all parties filed a stipulated motion asking that the trial be postponed yet again because there was “an ICPC request pending approval” and it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” The court granted the stipulated motion and continued the trial, but did so without date because the termination trial was deemed “to be a non-essential hearing.” Eventually, after the COVID-related administrative order was amended to allow some non-essential hearings to go forward, the court rescheduled the trial for October 2020, to take place via videoconference.

¶18 In the meantime, despite the fact that the ICPC report was not yet completed, the five oldest Children visited Grandparents in New Mexico for several weeks during the summer of 2020. DCFS did not allow the Subject Children to participate in that visit, not based on any concern about Grandparents’ ability to provide appropriate care for them, but because caseworkers believed that such a lengthy visit away from Foster Family would be “scary and upsetting” to the Subject Children.

¶19 During this time, the parties and their attorneys were preparing for trial. From the beginning of the case, Parents had each been provided with a court-appointed lawyer (collectively, Appointed Counsel) to represent them. But toward the end of July 2020, Parents asked a private lawyer (Private Counsel) to represent them at trial.[7] Private Counsel agreed, and Parents paid him a retainer. Parents informed Private Counsel of upcoming pretrial disclosure deadlines, and even gave him a list of fifteen witnesses Parents wanted to call at trial; Private Counsel told them that he would file the appropriate documents and that they did not need to contact their Appointed Counsel. Eventually, Parents discovered that no pretrial disclosures had been made and no motions for extensions of the deadlines had been filed.

¶20 The trial was finally held in October 2020. The first day was spent solely trying to clear up confusion about who was representing Parents. Appointed Counsel appeared for trial, but they indicated that they were unprepared to proceed given the lack of communication from Parents over the weeks leading up to trial. Private Counsel appeared as well, even though he had not filed a notice of appearance, and requested that the trial be continued. The court—not knowing the full picture of what had happened behind the scenes with Parents’ attempts to change counsel—chastised Private Counsel for the “very, very late notice and request” and denied the continuance, expressing concern that eleven months had already passed since the trial had originally been set. The court then recessed for the day to allow the parties to confer and negotiate about possible permanency options short of termination of Parents’ rights.

¶21 Those negotiations bore fruit, at least in part. With Private Counsel assisting Parents, the parties were able to reach a stipulation that it was in the best interest of the oldest five Children to be placed with Grandparents under an order of permanent custody and guardianship. But the parties were unable to reach a similar stipulation with regard to the Subject Children, and therefore the trial went forward as to them. At that point, Private Counsel withdrew from representing Parents, leaving Appointed Counsel to handle the trial even though they had not—given the lack of communication with Parents—made many of the usual preparations for a trial.

¶22 In support of its case, the State presented testimony from four DCFS caseworkers, two therapists, Mother’s former and current probation officers, and the mother from the Foster Family (Foster Mother). Foster Mother testified that the Subject Children had developed a strong bond with Foster Family and “love[d] spending time with [them].” She also stated that the Subject Children refer to her three children as “their brother and sisters,” that “[n]obody is ever left out amongst the kids,” and that L.H. “believes he is part of [their] family” and “has said, on multiple occasions, that he’s already adopted.” The two therapists testified that the Subject Children did indeed have a strong bond with Foster Family; one of them stated that it was “the most secure attachment [she had] ever witnessed . . . between a foster parent and a foster child,” and offered her view that it would be “hugely devastating” for them if they were removed from Foster Family.

¶23 Several of the caseworkers testified about the strength of the bond between the Subject Children and their older siblings, and they painted a picture in which those bonds were originally very strong but had begun to weaken over time as the Subject Children spent less time with their siblings and became more attached to Foster Family. One of the first caseworkers to work with the family testified that the bonds had been strong among all the Children, including the Subject Children. Another testified about how emotional the older children were upon learning that they were to be removed from the home a second time and again separated from most of their siblings. But another caseworker— who had been assigned to the family in 2019—testified that the Subject Children’s bond to their older siblings was weakening as they became more attached to Foster Family. In general, the caseworkers voiced concerns about separating siblings, offering their view that ordinarily “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶24 Parents were prohibited from introducing many of their witnesses because they had failed to make their required pretrial disclosures. In particular, Parents were prepared to call one of the Subject Children’s former foster parents as well as some of the older Children, who would each have apparently testified that the bonds between the Subject Children and their siblings had been, and still remained, very strong. But the court refused to allow Parents to call these witnesses because they had not been timely disclosed. The court did, however, allow Parents to offer testimony of their own, and to call Grandparents to testify.

¶25 For their part, Parents testified about how closely bonded the Children had been before DCFS became involved. Father testified that the older siblings had expressed a desire to all be together and noted that, if they were placed with Grandparents, the Subject Children would not only be with siblings, but also with cousins, and would have a large network of familial support. Mother testified that she, too, wanted the Children to be kept together and stated that she knew she was “not what [the Children] deserve” “right now,” but offered her view that, at some point in the future, after she has “[gotten] [her]self together,” she “will be what’s best for them.”

¶26 Grandfather testified that he and Grandmother told DCFS, right from the start, that they were willing to take all seven children. He explained that they were accustomed to large families, having raised eight children of their own; he noted that two of those children lived nearby, meaning that the Children, if they lived with him, would have aunts, uncles, and cousins in the vicinity. Grandfather testified that he and Grandmother had renovated their house to accommodate all seven children and that they were able, financially and otherwise, to take on the responsibility. He acknowledged that raising seven children was not how he had originally envisioned spending his retirement years, but he offered his view that “no matter what else I could be doing in the next ten or twenty years,” what mattered most to him was “that [he] could be doing something to make a difference in the lives of these kids.” Grandmother testified that she had bonded with A.H. during her three-week stay with the family after L.H. was born, and she offered her view that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit to New Mexico.

¶27 After trial, the court took the matter under advisement for six months, issuing a written decision in May 2021. In that ruling, the court terminated Parents’ rights as to A.H. and L.H. It found sufficient statutory grounds for termination of Parents’ parental rights, including Father’s physical abuse of some of the older sons, Parents’ neglect of L.H. when he was malnourished and failing to thrive as an infant, and neglect of the Children for failing to protect them from Mother’s substance use. Similarly, the court found that Mother had neglected the Children by failing to properly feed L.H., insufficiently supervising the Subject Children, and improperly using drugs. Moreover, the court found that Mother’s “substance abuse and criminal behavior” rendered her unfit as a parent.

¶28 The court next found that DCFS had made “reasonable efforts towards the permanency goal of reunification.” It noted that DCFS has been involved with the family since April 2017 and, “during the arc of the case, circumstances changed frequently and there were many setbacks in the attempts to reunify the children with the parents.” The court concluded that “reunification efforts were not successful through no fault of DCFS.”

¶29 Finally, as to best interest, the court determined—in keeping with the parties’ stipulation—that, with regard to the oldest five siblings, “a permanent custody and guardianship arrangement” with Grandparents “would serve their best interests as well as, or better than, an adoption would.” But the court saw it differently when it came to the Subject Children, concluding that their best interest would be best served by the facilitation of an adoption by Foster Family, and that termination of Parents’ rights was strictly necessary to advance that interest. The court reached that decision even though it meant permanently separating the Children, and even though the court acknowledged that Grandparents were “certainly appropriate caregivers.” The court offered several reasons for its decision. First, it noted that the Subject Children were very young—A.H. was two-and-a-half years old, and L.H. was eight months old, when they were first removed from the family home—and that, as a result, they “had a very short time to be with their older siblings.” Second, the court concluded that the strength of the bond between the Subject Children and their siblings was not particularly strong, opining that the Subject Children “have little beyond a biological connection” to their siblings. In this vein, the court downplayed any positive effects that might come from keeping the Children together, describing the older siblings as “a large and unruly group” that “cannot be depended upon to protect” the Subject Children. Third, the court discussed the unquestionably strong bond that the Subject Children had formed with Foster Family. Fourth, the court concluded that disruption of the Subject Children’s “placement at this time would be very detrimental” and would “put them at unnecessary risk for future emotional and mental health issues.” Fifth, the court expressed concern that, absent termination, Parents would retain some level of parental rights and might attempt “to regain custody of the [C]hildren in the future,” an eventuality the court believed would “pose a risk to” the Subject Children. And finally, the court emphasized the importance of stability, stating that “the [Subject Children] and [Foster Family] deserve, and indeed need, the highest level of legal protection available, which would be achieved through adoption.” For these reasons, the juvenile court terminated Parents’ rights with regard to the Subject Children.

ISSUE AND STANDARD OF REVIEW

¶30 Parents now appeal the juvenile court’s order terminating their parental rights, but their appeal is narrowly focused. Parents do not challenge the juvenile court’s determination that statutory grounds exist for terminating their parental rights. However, Parents do challenge the court’s determination that termination of their parental rights was strictly necessary and in the best interest of the Subject Children. We review a lower court’s “best interest” determination deferentially, and we will overturn it “only if it either failed to consider all of the facts or considered all of the facts and its decision was nonetheless against the clear weight of the evidence.” In re E.R., 2021 UT 36, ¶¶ 22, 31, 496 P.3d 58 (quotation simplified). But “such deference is not absolute.” Id. ¶ 32. We do not afford “a high degree of deference” to such determinations; rather, we simply apply “the same level of deference given to all lower court findings of fact and ‘fact-like’ determinations of mixed questions.” Id. ¶¶ 29–30. In addition, our deference must be guided by the relevant evidentiary standard applicable in termination of parental rights cases: the “clear and convincing” evidence standard. See In re G.D., 2021 UT 19, ¶ 73, 491 P.3d 867. “Although we defer to juvenile courts’ [best-interest] determinations, in reviewing their conclusions we do so with an exacting focus on the proper evidentiary standard,” and “we will not only consider whether any relevant facts have been left out but assess whether the juvenile court’s determination that the ‘clear and convincing’ standard had been met goes against the clear weight of the evidence.” Id.[8]

ANALYSIS

¶31 The right of parents to raise their children is one of the most important rights any person enjoys, and that right is among the fundamental rights clearly protected by our federal and state constitutions. See Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (stating that “the interest of parents in the care, custody, and control of their children” is “perhaps the oldest of the fundamental liberty interests” the court recognizes); see also In re J.P., 648 P.2d 1364, 1372 (Utah 1982) (“A parent has a fundamental right, protected by the Constitution, to sustain his relationship with his child.” (quotation simplified)). Our legislature has expressed similar sentiments, declaring that “[u]nder both the United States Constitution and the constitution of this state, a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child,” see Utah Code Ann. § 80-4-104(1) (LexisNexis Supp. 2022), and that this interest “does not cease to exist simply because . . . a parent may fail to be a model parent,” id. § 80-4-104(4)(a)(i).

¶32 The “termination” of these fundamental “family ties . . . may only be done for compelling reasons.” See id. § 80-4-104(1). Under our law, a parent’s rights are subject to termination only if both parts of a two-part test are satisfied. First, a court must find that one or more statutory grounds for termination are present; these include such things as abandonment, abuse, or neglect. See id. § 80-4-301(1). Second, a court must find that termination of the parent’s rights is in the best interest of the children. See In re B.T.B., 2020 UT 60, ¶¶ 19–20, 472 P.3d 827. The party seeking termination of a parent’s rights bears the burden of proof on both parts of this test. See In re G.D., 2021 UT 19, ¶ 43, 491 P.3d 867 (stating that “petitioners in termination proceedings must prove termination is warranted”). And that party must make this required showing “by clear and convincing evidence.” Id.see also Santosky v. Kramer, 455 U.S. 745, 769–70 (1982) (concluding that the U.S. Constitution requires application of a “clear and convincing evidence” standard in parental termination proceedings).

¶33 As noted, Parents do not challenge the juvenile court’s determination that statutory grounds for termination exist in this case. Their challenge is limited to the second part of the test: whether termination of their rights is, under the circumstances presented here, in the best interest of the Subject Children.

¶34 “The best interest of the child has always been a paramount or ‘polar star’ principle in cases involving termination of parental rights,” although it is not “the sole criterion.” In re J.P., 648 P.2d at 1368. The assessment of what is in a child’s best interest is, by definition, “a wide-ranging inquiry that asks a court to weigh the entirety of the circumstances” surrounding a child’s situation, including “the physical, intellectual, social, moral, and educational training and general welfare and happiness of the child.” See In re J.M., 2020 UT App 52, ¶¶ 35, 37, 463 P.3d 66 (quotation simplified). Because children inhabit dynamic environments in which their “needs and circumstances” are “constantly evolving,” “the best-interest inquiry is to be undertaken in a present-tense fashion,” as of the date of the trial or hearing held to decide the question. See In re Z.C.W., 2021 UT App 98, ¶¶ 12–13, 500 P.3d 94 (quotation simplified).

¶35 Our legislature has provided two related pieces of important guidance on the best-interest question. First, it has expressed a strong preference for families to remain together, establishing something akin to a presumption that a child’s best interest will “usually” be served by remaining with the child’s parents:

It is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents. A child’s need for a normal family life in a permanent home, and for positive, nurturing family relationships is usually best met by the child’s natural parents.

Utah Code Ann. § 80-4-104(8). In that same statutory section, our legislature also emphasized that, “[w]herever possible, family life should be strengthened and preserved.” See id. § 80-4-104(12). And the “family” includes the child’s parents as well as the child’s siblings; indeed, in the related child custody context, our legislature has specifically identified “the relative benefit of keeping siblings together” as a factor that the court “may consider” when evaluating “the best interest of the child.” See id. § 30-3-10(2)(o) (LexisNexis 2019).[9]

¶36 Second, our legislature has mandated that termination of parental rights is permissible only when such termination is “strictly necessary.” See id. § 80-4-301(1). Our supreme court has interpreted this statutory requirement to mean that “termination must be strictly necessary to promote the child’s best interest.” See In re B.T.B., 2020 UT 60, ¶ 60. Indeed, a court’s inquiry into the strict necessity of termination should take place as part of the bestinterest inquiry that comprises the second part of the termination test. See id. ¶ 76 (stating that, “as part of [the best-interest inquiry], a court must specifically address whether termination is strictly necessary to promote the child’s welfare and best interest”).

¶37 In assessing whether termination is strictly necessary to promote a child’s best interest, courts “shall consider” whether “sufficient efforts were dedicated to reunification” of the family, and whether “the efforts to place the child with kin who have, or are willing to come forward to care for the child, were given due weight.” See Utah Code Ann. § 80-4-104(12)(b). Indeed,

this part of the inquiry also requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. In some cases, alternatives will be few and unsatisfactory, and termination of the parent’s rights will be the option that is in the child’s best interest. But in other cases, courts should consider whether other less permanent arrangements might serve the child’s needs just as well.

In re B.T.B., 2020 UT 60, ¶ 67 (quotation simplified). Courts that order termination of parental rights without appropriately exploring “feasible alternatives to termination” have not properly applied the second part of the two-part termination test. See, e.g.In re H.F., 2019 UT App 204, ¶ 17, 455 P.3d 1098 (reversing and remanding a juvenile court’s termination order because, among other things, “the court’s determination that termination was strictly necessary was not supported by an appropriate exploration of feasible alternatives to termination”).

¶38 In this case, Parents challenge the juvenile court’s best interest determination, including its subsidiary conclusion that termination of their rights was strictly necessary to promote the best interest of the Subject Children. As discussed herein, we find merit in Parents’ challenge. We recognize that we are reviewing the juvenile court’s determinations deferentially, and we do not lightly reverse a court’s best-interest determination. But the facts of this case simply do not amount to strict necessity, and therefore the best-interest requirement is not met. Stated another way, the evidence presented at trial did not constitute clear and convincing evidence that termination of Parents’ rights to the Subject Children would be in the best interest of those children. Under the specific circumstances of this case, the juvenile court’s determination was against the clear weight of the evidence, and on that basis we reverse.

¶39 In its written decision, the juvenile court set forth several reasons for its conclusion that termination of Parents’ rights was strictly necessary to promote the Subject Children’s best interest.[10] We discuss those reasons, in turn. Although the topics that the juvenile court focused on are certainly appropriate topics to consider when examining best interest, we conclude that the facts underlying those topics—in this case—do not support a determination that termination was strictly necessary to promote the best interest of the Subject Children.

¶40 The court began its best-interest examination by discussing the ages of the Subject Children and, relatedly, the fact that the bonds between the Subject Children and their siblings had deteriorated. The Subject Children are, as noted, the youngest of the seven Children and were very young—A.H. was two-and-ahalf years old, and L.H. was eight months old—when they were first removed from the family home. The juvenile court noted that, as a result, they “did not have the opportunity to live with their parents for as long as their older siblings” and “had a very short time to be with their older siblings.” These facts are unquestionably true, and one of the consequences of these facts is that the Subject Children had less-developed bonds with Parents and with their siblings than the other Children did. But this will almost always be true when children are removed from their homes as newborns or toddlers, and courts must be careful not to overemphasize the significance of the deterioration of familial bonds—particularly sibling bonds—when that deterioration is the result of court-ordered removal from the home at an early age. See, e.g.In re N.M., 186 A.3d 998, 1014 n.30 (Pa. Super. Ct. 2018) (vacating an order terminating parental rights in part because the lower court’s decisions during the case had been “designed to affect the bond between” the parents and the child “so that termination would be the natural outcome of the proceedings”).

¶41 The facts of this case present an interesting case study. The next-oldest of the Children was born in April 2013, and is less than two years older than A.H. He was only four years old at the time of the first removal, and yet the juvenile court determined that it would not be in his best interest for Parents’ rights to be terminated. Many of the differences—especially in terms of the strength of the sibling bonds—between the Subject Children’s situation and that of their barely-older brother are largely the result of decisions made by DCFS and the court during the pendency of these proceedings. In a situation like this, a court must be careful not to ascribe too much weight to circumstances that are of the court’s own making.

¶42 We do not doubt the juvenile court’s finding that, by the time of trial, the bonds between the Subject Children and the other Children were not as strong as the bonds between the five oldest Children. We take at face value the court’s statement that the Subject Children, at the time of trial, had “little beyond a biological connection” to their older siblings. But even the biological connection between siblings matters. The connection between siblings is, for many people, the longest-lasting connection they will have in life. Indeed, “the importance of sibling relationships is well recognized by . . . courts and social science scholars,” because “a sibling relationship can be an independent emotionally supporting factor for children in ways quite distinctive from other relationships, and there are benefits and experiences that a child reaps from a relationship with his or her brother(s) or sister(s) which truly cannot be derived from any other.” In re D.C., 4 A.3d 1004, 1012 (N.J. 2010) (quotation simplified); see also Aaron Edward Brown, He Ain’t Heavy, He’s My Brother: The Need for a Statutory Enabling of Sibling Visitation, 27 B.U. Pub. Int. L.J. 1, 5 (2018) (noting that “[t]oday’s children are more likely to grow up with a sibling than a father,” and that “[t]he sibling relationship is generally regarded to be the longest relationship a person will have because the relationship will typically last longer than a relationship with a parent or spouse”). Such bonds are often especially important “to children who experience chaotic circumstances” like abuse or neglect, because “in such circumstances, they learn very early to depend on and cooperate with each other to cope with their common problems.” In re D.C., 4 A.3d at 1013 (quotation simplified); see also In re Welfare of Child of G.R., No. A17-0995, 2017 WL 5661606, at *5 (Minn. Ct. App. Nov. 27, 2017) (“The sibling relationship is especially important for a young child with an unstable family structure as these siblings can provide secure emotional attachment, nurturing, and solace.”). Indeed, trial testimony from the DCFS caseworkers mirrored these sentiments, with the caseworkers stating that “children should stay together” and that placing siblings together “is understood under most circumstances . . . to be beneficial to the kids.”

¶43 And there is nothing in the record before us that indicates significant trouble among the sibling ranks. To the contrary, by all accounts the Children are quite loyal to one another, as best exemplified by their collective reaction—outrage—to being removed from the family home, and from each other, a second time in 2019. The juvenile court referred to them as a “large and unruly group,” but that description would seem to fit almost any group of seven siblings. The court also appeared concerned about “significant sibling rivalr[ies]” among some of the older Children but, again, we would be surprised to find a seven-member sibling group that didn’t have significant sibling rivalries. The court also offered its view that “[t]he older boys cannot be depended upon to protect” the Subject Children, but we think that’s an unfair expectation, as the court itself noted. And there are no allegations (for example, of intra-sibling abuse) about or among this sibling group that would counsel against keeping the group together.

¶44 We are also troubled, under the unusual circumstances of this case, by the fact that the deterioration of the Subject Children’s bonds with their siblings was due, in not-insignificant part, to the way this case was litigated, even apart from the removal and placement decisions. Notably, DCFS did not take any systematic steps to facilitate visitation between the three (and sometimes four) sibling groups that were placed in different homes, but instead “left that mostly up to [the] foster parents.”[11] In particular, DCFS did not allow the Subject Children to visit Grandparents with the rest of the Children during the summer of 2020. And Grandmother offered her perception that it had been difficult to get Foster Mother to facilitate telephonic or virtual visits between the older siblings and the Subject Children during the older siblings’ summer 2020 visit. Under these circumstances, it is no wonder that the Subject Children’s bond with their siblings began to wane. It is intuitive that relationships can become more distant without meaningful contact. To at least some degree, the deterioration of the sibling bonds is attributable to DCFS’s (and the various foster parents’) actions in failing to facilitate regular sibling visitation.

¶45 In addition, DCFS’s delay in starting the ICPC process appears to have also played a role in the way this case turned out. In July 2019, the juvenile court ordered that “an ICPC” be conducted to explore the possibility of placing the Children with Grandparents in New Mexico. But DCFS—perhaps intentionally, according to one of the caseworkers—delayed acting upon the court’s ICPC order for nearly four months, until late October 2019. Delays in obtaining ICPC reports are not necessarily uncommon, and can be just an unfortunate part of the process of communicating between agencies of different states. But such delays are troubling when they are attributable to a state agency’s refusal to even get the process started, despite a court order requiring it to do so. Although DCFS could not have known it at the time, its failure to timely initiate the ICPC process may have mattered more in this case than in others, because of the eventual emergence, in early 2020, of the COVID-19 pandemic.

¶46 Recall that, in the fall of 2019 and early 2020, after DCFS filed its termination petition, all parties were on the same page: they were working toward placing the Children—all of them— with Grandparents in New Mexico. Indeed, it was “highly anticipated by all parties that the results of the ICPC [would] resolve all issues pending before the Court.” But before a placement with Grandparents could happen, the ICPC report needed to be completed, and the parties twice stipulated to continuances of the termination trial specifically so that the ICPC report could be finished, and so that they could “ensure [that] the Grandparents kn[ew] what they [were] getting into.” These continuances resulted in the trial being rescheduled for late March 2020, which in turn resulted in the trial being postponed again because of the emergence of the pandemic. The ICPC report was not completed until October 2020, and by then, the Subject Children had been with Foster Family for more than a year and had begun to develop meaningful bonds there. Under these circumstances, it is hard not to wonder what might have happened if DCFS had begun the ICPC process in July 2019, as it had been ordered to do.[12]

¶47 Next, the court—appropriately—discussed at some length the Subject Children’s bond with Foster Family. There is no doubt that Foster Family is an appropriate adoptive placement, and that Foster Parents are doing a wonderful job caring for the Subject Children. The court made unchallenged findings in this regard, noting that Foster Parents are the ones “who care for them on a daily basis, feed them, hug them, and put them to bed,” and that, from the Subject Children’s point of view, Foster Parents “are their parents.” We do not minimize the significance of these findings. They are important, and are a necessary condition to any adoption-related termination of parental rights. After all, if an adoptive placement is not working out, an adoption into that placement is very unlikely to be finalized.

¶48 But while the existence of an acceptable adoptive placement is a necessary condition to any adoption-related termination, it is not a sufficient one. At some level, we certainly understand the impulse to want to leave children in—and perhaps make permanent—a putative adoptive placement in which the children are thriving. And we recognize—as the juvenile court observed here—that taking a child out of a loving adoptive placement in order to reunite the child with family can be detrimental to the child, at least in the short term. But in order to terminate parental rights to facilitate an adoption, a court must have before it more than just a loving and functional adoptive placement from which it would be emotionally difficult to remove the child. Termination of parental rights must be “strictly necessary to promote the . . . welfare and best interest” of the children in question. See In re B.T.B., 2020 UT 60, ¶ 76, 472 P.3d 827. And in order to reach that conclusion, a court must do more than make a finding about the acceptability of the adoptive placement—it must examine potential options, short of termination, that might also further the best interest of the children in question. Id. ¶¶ 66–67. In particular, and especially in light of our legislature’s guidance that families should be kept together whenever possible, see Utah Code Ann. § 80-4-104(8), (12), courts must investigate kinship placement possibilities, including options for permanent guardianship. And if one of those placements turns out to be an option that can promote the child’s best interest “just as well,” then it is by definition not “strictly necessary” to terminate the parent’s rights. See In re B.T.B., 2020 UT 60, ¶¶ 66–67.

¶49 Moreover, in this context courts must keep in mind the “clear and convincing” evidentiary standard. See In re G.D., 2021 UT 19, ¶ 44, 491 P.3d 867. If there exists a completely appropriate kinship placement through which the family can remain intact, the “strictly necessary” showing becomes significantly more difficult to make. We stop well short of holding that, where an acceptable kinship placement exists, it can never be strictly necessary to terminate a parent’s rights. But in such cases, the proponent of termination must show, by clear and convincing evidence, that the adoptive placement is materially better for the children than the kinship placement is. After all, if the two placements can each “equally protect[] and benefit[]” the child’s best interest, then by definition there does not exist clear and convincing evidence in favor of terminating a parent’s rights. See In re B.T.B., 2020 UT 60, ¶ 66. And in this case, the necessary showing was not made.

¶50 Perhaps most significantly, there is not a hint of any evidence in the record before us that placement with Grandparents is flawed. The ICPC report (finally) came back clean; that report raised no concerns with regard to Grandparents, and concluded that their home would be an appropriate placement for the Children. The five older siblings had a lengthy visit with Grandparents in the summer of 2020, and all went well. And just before trial, the parties stipulated that the five oldest

Children should be placed with Grandparents on a long-term basis, subject to a permanent custody and guardianship arrangement. The court approved this stipulation, agreeing with the parties “that a permanent custody and guardianship arrangement” would serve the best interest of the five oldest Children. It even found that Grandparents are “certainly appropriate caregivers.” And on appeal, all parties agree that Grandparents are acceptable and loving caregivers; no party has even attempted to take issue with Grandparents’ ability to provide a loving and stable home for the Children. There is no dispute that Grandparents have the capacity and ability, from a financial standpoint as well as otherwise, to care for all seven Children, and stand ready and willing to do so, regardless of whether that takes the form of an adoption or a permanent guardianship arrangement.

¶51 The juvenile court opted to go in a different direction, primarily for three related reasons. First, it emphasized how “detrimental” and “destabilizing” it would be for the Subject Children to be removed from Foster Family. Second, the court emphasized that the Subject Children need stability and permanency, and determined that adoption—as opposed to guardianship—could best provide that stability. Third, the court expressed concern that, absent an adoption, Parents might attempt—at some later point in time—to get back into the lives of the Subject Children, and perhaps even “regain custody,” an eventuality the court believed would “pose a risk to” the Subject Children. In our view, these stated reasons do not constitute clear and convincing reasons to terminate Parents’ rights.

¶52 With regard to permanency and stability, our supreme court has recently clarified that the mere fact that adoptions—as a category—provide more permanency and stability than guardianships do is not enough to satisfy the statutory “strictly necessary” standard. See In re J.A.L., 2022 UT 12, ¶ 24, 506 P.3d 606. In that case, the court held that the lower court fell into legal error in concluding that [a guardianship option] would not provide the “same degree of permanency as an adoption.” That is not the question under our law. A permanent guardianship by definition does not offer the same degree of permanency as an adoption. And there is always some risk that the permanent guardianship could come to an end, or be affected by visitation by the parent. If these categorical concerns were enough, termination and adoption would be strictly necessary across the board. But such categorical analysis is not in line with the statutory standard.

Id. The court then noted that, as part of the “strictly necessary” analysis, a court “must assess whether a permanent guardianship can equally protect and benefit the children in the case before it.” Id. ¶ 25 (quotation simplified). The court made clear that the statutory requirements were “not met by the categorical concern that a permanent guardianship is not as stable or permanent as an adoption,” and instead “require[] analysis of the particularized circumstances of the case before the court.” Id.

¶53 As applied here, this recent guidance renders insufficient—and more or less beside the point—the juvenile court’s apparent belief that an adoption was better than a guardianship simply because it was more permanent and more stable. All adoptions are at least somewhat more permanent than guardianships, and therefore that conclusion, standing alone, is not enough to constitute clear and convincing evidence supporting termination. It is certainly appropriate for courts in termination cases to discuss the potential need for permanency and stability. But in doing so, and when selecting an adoptive option over a guardianship option, a court in a termination case must articulate case-specific reasons why the added layer of permanency that adoptions offer is important and why adoption would better serve the best interest of the children in question than the guardianship option would.

¶54 The court’s concern about the possibility of Parents reentering the Children’s lives is, on this record, not an adequate case-specific reason. As an initial matter, it—like the lack of permanency—is a feature of the entire category of guardianships. It will always be true that, in a guardianship, a parent retains what the juvenile court here referred to as “residual rights,” while in an adoption the parent’s rights are terminated forever. This kind of categorical concern is not enough to constitute clear and convincing evidence in support of termination.

¶55 Moreover, we question whether—in many cases, including this one—a parent’s desire to re-engage in their child’s life should be viewed as negatively as the juvenile court appeared to view it. Here, we return to the statutory guidance offered by our legislature: that “family life should be strengthened and preserved” “[w]herever possible,” and that it is usually “in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents.” See Utah Code Ann. § 80-4-104(8), (12). We note our own observation that, “[i]n many cases, children will benefit from having more people—rather than fewer—in their lives who love them and care about them.” See In re B.T.B., 2018 UT App 157, ¶ 55, 436 P.3d 206, aff’d, 2020 UT 60, 472 P.3d 827. And we acknowledge Parents’ point that a parent whose child has been placed in a permanent guardianship arrangement in a child welfare proceeding has no independent right to petition to change or dissolve the guardianship. See Utah Code Ann. § 78A-6-357(3)(d) (LexisNexis Supp. 2022). Only the guardian has that right. See id. And there is no evidence, in this record, that Grandparents will be particularly susceptible to inappropriate pressure from Parents to seek a change in the terms of any guardianship arrangement. In addition, there is no evidence that, if the Subject Children were placed into a guardianship with Grandparents, it would be harmful to them for Parents to retain the possibility of maintaining some form of contact with them (as they have with regard to the other Children), as supervised by court order and by Grandparents acting as guardians.[13] In other words, the juvenile court did not emphasize any case-specific issues that make us especially concerned about the possibility of Parents attempting to re-enter the Children’s lives at some point in the future.

¶56 We are thus left with the court’s concern—shared by the Subject Children’s therapists—about the disruption in the Subject Children’s lives that would be caused by removing them from Foster Family and placing them with Grandparents, alongside their siblings. This is of course a legitimate concern, and one that courts should take into account in situations like this. If and when the Subject Children are ever placed into a guardianship with Grandparents, and taken from Foster Family, that will no doubt be traumatic for them, at least in the short term. We acknowledge the validity of such concerns, and do not intend to minimize them. But in this case, focusing too much on this more-present possibility of emotional trauma risks minimizing the longer-term emotional trauma that permanent severance of the sibling bonds will likely someday trigger. In this specific and unique situation, the juvenile court’s discussion of potential emotional trauma associated with removal from Foster Family does not constitute clear and convincing evidence supporting termination.

¶57 For all of these reasons, we conclude that the juvenile court’s best-interest determination was against the clear weight of the evidence presented at trial. The State failed to prove, by clear and convincing evidence, that termination of Parents’ rights to Subject Children was strictly necessary, especially given the presence of another available and acceptable option—permanent guardianship with Grandparents, alongside their five siblings— that would not require permanent severance of familial bonds and that would serve the Subject Children’s best interest at least as well as adoption. See In re G.D., 2021 UT 19, ¶ 75 (“[W]hen two placement options would equally benefit a child, the strictlynecessary requirement operates as a preference for a placement option that does not necessitate termination over an option that does.”). Under the unique circumstances of this case, termination of Parents’ rights is not strictly necessary to promote the Subject Children’s best interest.

CONCLUSION

¶58 Accordingly, we reverse the juvenile court’s order of termination, and remand the case for further proceedings consistent with this opinion. We offer a reminder that best-interest determinations are to be conducted in present-tense fashion, as of the date of the trial or hearing convened to consider the matter. See In re Z.C.W., 2021 UT App 98, ¶ 14, 500 P.3d 94. Our holding today is that, based on the evidence presented at trial in October

2020, termination of Parents’ rights was not strictly necessary to promote the Subject Children’s best interest. On remand, the juvenile court should re-assess best interest. If nothing has materially changed since October 2020, then we expect the court to enter orders designed to work (perhaps quite gradually, in the court’s discretion) toward integration of the Subject Children into a placement with Grandparents, alongside their siblings. But if there is evidence that matters have materially changed since October 2020, the court may need to consider that evidence in some fashion, see id. ¶ 15, and re-assess best interest based on the situation at the time of the hearing.

 

[1]Senior Judge Kate Appleby sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(7).

[2] In this opinion, for ease of reference, we refer to E.H.’s paternal grandparents as “Grandparents,” and we refer to them individually as “Grandmother” and “Grandfather,” even though any biological relationship exists only with E.H. and not with the other six Children.

 

[3] L.H. was removed from the home for a one-month period during this time, again because of concerns that he was malnourished and “failing to thrive.”

[4] These arrangements were a bit fluid during this period—at one point, the oldest four Children were combined into one placement, and the fifth-oldest was placed with Foster Family along with the Subject Children. However, the mother of the Foster Family testified at trial that, after a while, the fifth child often got upset at how his younger siblings were becoming so attached to Foster Family, and so she eventually asked that he be placed elsewhere.

 

[5] The abbreviation “ICPC” refers to the Interstate Compact on the Placement of Children, an interstate agreement that has been adopted by all fifty states. See Utah Code Ann. § 62A-4a-701 (LexisNexis 2018). The ICPC allows child welfare agencies from different states to more easily cooperate regarding placement of children across state lines.

 

[6] See Administrative Order for Court Operations During Pandemic, Utah Supreme Court (Mar. 13, 2020), https://www.utcourts.gov/alerts/docs/20200311%20-%20Pandem ic%20Administrative%20Order.pdf [https://perma.cc/3EGH-3V3Z].

[7] The facts recited in this paragraph regarding Parents’ communications with their various attorneys are not in the record, but are included in the materials submitted on appeal in support of Parents’ claim of ineffective assistance of counsel.

[8] Parents also raise other issues, including an assertion that Private Counsel rendered deficient performance that prejudiced them at the termination trial. Although we acknowledge the strength of Parents’ assertion that Private Counsel rendered ineffective assistance, and discuss in passing the problems they had with him, we need not reach the merits of that claim or any of their other claims because we reverse on the merits of their main claim.

[9] A court’s consideration of the importance of sibling relationships is arguably even more important in the termination/adoption context than it is in the child custody context, simply because of the permanency of termination and adoption. When split custody is ordered in a domestic case, the children will not live together all the time, but their overarching family relationship remains intact; they will remain siblings and, depending on visitation schedules, they will likely see each other several times each month. But when—as in this case—siblings are separated for purposes of adoption, the familial bonds, including the sibling bonds, are more permanently affected.

[10] Parents assert that the juvenile court erred by limiting its best interest inquiry to the Subject Children, rather than considering whether termination of Parents’ rights to the Subject Children was in the best interest of all the Children. Although we are far from persuaded by Parents’ assertion, we need not further concern ourselves with it, because for purposes of our analysis we assume, without deciding, that the juvenile court properly focused on the Subject Children when conducting the best-interest inquiry. Even assuming the propriety of that more limited focus, we nevertheless find the court’s ultimate best-interest determination unsupported by clear and convincing evidence.

[11] DCFS’s actions in this regard were arguably contrary to statute. See Utah Code Ann. § 62A-4a-205(12)(a) (LexisNexis Supp. 2022) (stating that DCFS must “incorporate reasonable efforts to . . . provide sibling visitation when siblings are separated due to foster care or adoptive placement”); see also id. § 80-3307(12)(a) (requiring DCFS to “incorporate into the child and family plan reasonable efforts to provide sibling visitation if . . . siblings are separated due to foster care or adoptive placement”).

[12] The juvenile court addressed this issue in its written ruling, and downplayed the significance of the delayed ICPC report. It expressed its view that, even if DCFS had timely requested the ICPC report, the case would not have come out differently. First, it assumed that the ICPC process would have taken a year to complete even if the report had been requested in July 2019. We wonder about that, and in particular wonder whether any of the delays in completing the ICPC report were due to the emergence of the pandemic. But more to the point, the court indicated that it would have made the same termination decision in July 2020 as it made in October 2020. However, the court does not account for the fact that all parties to the case, including DCFS, were on the same page at least as late as March 12, 2020, and anticipated placing all the Children with Grandparents as soon as the ICPC report came back. Had the ICPC report come back significantly earlier, while the parties were still in agreement, things almost certainly would have been different. We doubt that the juvenile court would have rejected the parties’ stipulation on that point, just as it did not reject the parties’ October 2020 stipulation regarding the five oldest Children.

[13] Indeed, concerns about Parents potentially getting back into the lives of the Subject Children appear especially overblown under the facts of this case, given the fact that the juvenile court approved the stipulation for a permanent guardianship arrangement for the other five Children. The court does not convincingly explain why it is concerned for the Subject Children and not the others, stating only that the potential for the Parents to “regain custody . . . might not be devastating for the older children, but it will certainly be devastating to” the Subject Children. Presumably, this is a reference to the fact that the Subject Children are younger and have less of a pre-existing relationship with Parents and the other Children, an aspect of this case that we have already discussed.

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

2021 UT App 77  THE UTAH COURT OF APPEALS  

  

LISA P. MINER, Appellee,  

JOHN E. MINER, Appellant.  

  

Opinion  

No. 20200098-CA  

Filed July 15, 2021  

  

Fifth District Court, St. George Department  

The Honorable Jeffrey C. Wilcox No. 174500373  

  

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

  1. Adam Caldwell, Attorney for Appellee 

  

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

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

  

HARRIS, Judge:  

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

BACKGROUND  

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

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

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

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

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

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

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

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

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

ISSUES AND STANDARDS OF REVIEW  

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

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

ANALYSIS  

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

  1. Alimony 

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

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

  1. Amount of Alimony  

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

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

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

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

  1. Lisa’s Needs 

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

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

  1. Tennis Expenses  

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

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

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

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

  1. Entertainment  

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

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

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

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

  1. Legal and Accounting Expenses  

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

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

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

  1. Out-of-Pocket Health Expenses  

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

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

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

  1. Car Payment  

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

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

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

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

  1. Student Loan Payments  

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

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

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

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

  1. Farm and Horse Expenses  

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

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

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

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

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

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

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

  1. Mortgage and House-Related Expenses  

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

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

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

  1. i.  Parenting Expenses 

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

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

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

  1. Retirement Savings and Asserted Mathematical Error  

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

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

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

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

  1. Tax-Related Expenses  

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

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

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

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

  1. Lisa’s Earning Capacity 

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

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

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

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

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

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

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

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

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

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

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

  1. John’s Ability to Provide Support 

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

  1. Farm Income  

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

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

  1. John’s Business Expenses  

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

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

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

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

  1. John’s Medical Income and Work Expectations  

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

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

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

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

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

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

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

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

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

  1. Duration of Alimony  

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

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

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

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

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

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

  1. Retroactive Alimony  

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

  1. Stipulation 

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

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

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

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

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

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

  1. Reductions in Retroactive Award 

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

(…continued)  

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

  

  1. Attorney Fees 

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

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

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

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

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

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

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

CONCLUSION  

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

 

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

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Oldroyd v. Oldroyd – 2019 UT App 155 – premarital property interest, unjust enrichment

Oldroyd v. Oldroyd – 2019 UT App 155 – THE UTAH COURT OF APPEALS

ROBBEN ANN OLDROYD,
Appellant,
v.
FARRELL LYNN OLDROYD,
Appellee.

Opinion
No. 20180257-CA
Filed September 26, 2019
Second District Court, Morgan Department
The Honorable Noel S. Hyde
No. 134500028

Brent D. Wride and Bryant McConkie, Attorneys
for Appellant

Brian E. Arnold and Lauren Schultz, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES KATE APPLEBY and DAVID N. MORTENSEN
concurred.

CHRISTIANSEN FORSTER, Judge:

¶1        Robben Ann Oldroyd (Wife) appeals the district court’s determination that Farrell Lynn Oldroyd (Husband) was entitled to an equitable interest in property she acquired prior to the parties’ marriage. We reverse and remand for further proceedings.

BACKGROUND

¶2        This case previously came before us in Oldroyd v. Oldroyd (Oldroyd I), 2017 UT App 45, 397 P.3d 645. At that time, Wife challenged the district court’s determination that Husband had acquired a premarital interest in a home constructed prior to their marriage and titled in her name. Id. ¶¶ 2, 5.

¶3        We vacated the award and remanded for the district court to make additional findings disclosing “the steps by which the district court reached its ultimate conclusion.” Id. ¶¶ 5, 11. Although courts have discretion to grant one spouse an equitable portion of premarital property belonging to another spouse in certain circumstances, see Lindsey v. Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968, the district court had not made findings regarding any of those circumstances. Instead, it concluded that Husband had “acquired a separate premarital interest in the improvements on the property.” Oldroyd I, 2017 UT App 45, ¶ 4 (quotation simplified). Yet the court did not articulate “what legal theory gave” Husband a premarital interest in the property as opposed to an equitable interest in a portion of a premarital asset belonging to Wife. Id. ¶ 8. Thus, we were “unable to trace with accuracy the steps by which the district court reached its ultimate conclusion that [Husband] had obtained a premarital interest in the house.” Id. ¶ 11 (emphasis added).

¶4        On remand, the court made additional findings regarding Husband’s contribution to the value of the home. The court found that Wife had contributed $350,000 toward the out-of-pocket costs of constructing the home and that “[t]he value of the specialized expertise and labor provided” by Husband, which included providing “the vast majority of supervision and conceptual direction for the construction of the home,” “was equivalent to the value of [Wife’s] financial contributions to the home’s construction,” i.e., $350,000.[1] The court further found that Husband “conferred upon [Wife] the benefit of his unique and specialized knowledge and skills in constructing the . . . home,” that Wife “was aware of and appreciated the unique and substantial benefit being conferred upon her,” and that permitting Wife “to retain the benefit of [Husband’s] knowledge and skills without granting [Husband] equal value in the home would unjustly enrich” Wife. Based on these findings, the court determined that the parties “should each be awarded a 50% premarital interest” in the home based on a theory of unjust enrichment. Wife again appeals the district court’s decision.

ISSUE AND STANDARD OF REVIEW

¶5        Wife asserts that the district court erred in recognizing a 50% premarital interest for Husband based on unjust enrichment. “We review the district court’s legal conclusions for correctness, and will reverse its factual findings only if they are clearly erroneous.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 49, 99 P.3d 801.

ANALYSIS

¶6        Wife asserts that the district court erred in awarding Husband a premarital interest based on unjust enrichment, because that theory was neither pleaded nor tried by consent. Husband maintains that his pleadings adequately asserted an unjust enrichment claim and that, even if they did not do so explicitly, Wife was aware of the claim and defended against it at trial, thereby impliedly consenting to its consideration. We agree with Wife.

¶7        First, Husband’s pleadings cannot be construed as asserting an unjust enrichment claim. The pleadings alleged that Husband “has exerted hours and money into the home, including trade work,” and that he “should be awarded a sum certain from [Wife’s] equity in the home for all the work he has completed on the home, and for value of his trade work that he has performed for investment on the marital home.” This is not a claim for a premarital interest in property based on unjust enrichment or any other theory but a claim for an equitable award of a portion of Wife’s premarital asset.[2] See Lindsey v. Lindsey, 2017 UT App 38, ¶ 33, 392 P.3d 968.

¶8        Second, Husband has not pointed us to anything in the

trial record suggesting that the issue was tried by implied consent. “When an issue not raised in the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings.” Utah R. Civ. P. 15(b)(1). “Implied consent to try an issue may be found where one party raises an issue material to the other party’s case or where evidence is introduced without objection, where it appears that the parties understood the evidence is to be aimed at the unpleaded issue.” Hill v. Estate of Allred, 2009 UT 28, ¶ 48, 216 P.3d 929 (quotation simplified). But “when evidence is introduced that is relevant to a pleaded issue and the party against whom the amendment is urged has no reason to believe a new issue is being injected into the case, that party cannot be said to have impliedly consented to trial of that issue.” Id. (quotation simplified).

¶9        Husband’s contribution to the value of the home was a major issue at trial, and much evidence was presented by both parties on this point. However, all of this evidence was relevant to Husband’s equitable claim that his efforts on the home entitled him to a portion of Wife’s premarital asset. There is nothing inherent in this evidence that would have suggested to Wife that the evidence was introduced to prove an unpleaded unjust enrichment claim. And in fact, Husband represented the opposite, explicitly acknowledging at trial that his opportunity to assert unjust enrichment had passed, since more than eighteen years had elapsed since the completion of the home. The fact that any unjust enrichment claim was several years too late is the reason Husband sought an equitable award of a portion of Wife’s property as part of the divorce action. It was the court that ultimately construed Husband’s claim as an assertion of a premarital interest in Wife’s separate property and articulated it as such in its order.

¶10 In Oldroyd I, we concluded that the district court had failed to “explain what legal theory gave rise” to Husband’s premarital interest in the property and clarified, “[T]he court did not discuss whether unjust enrichment, promissory estoppel, quasi-contract, or some other theory applied.” Oldroyd I, 2017 UT App 45, ¶ 8. While acknowledging that it also did not appear that Husband had “identified to the court a particular theory under which he was entitled to a premarital interest,” we left open the possibility that there could be some legal theory under which the court could reach such a conclusion. Id. Upon further review, however, it is apparent that this is not the case. Husband raised no contract, quasi-contract, or equitable claim that he had acquired a premarital interest in the home, and no such claim was tried by consent. Further, by Husband’s own admission, it does not appear that any such claim was available to him within the statute of limitations. See Utah Code Ann. § 78B-2-307(1) (LexisNexis 2018). Thus, the district court erred in determining that Husband had established a premarital interest in the property.

¶11 Because the district court premised its ruling on the conclusion that Husband had acquired a premarital interest in the home, it did not rule on his equitable argument. On remand, the court is not precluded from evaluating this argument, which was specifically pleaded and tried.[3]

CONCLUSION

¶12      Because a claim of unjust enrichment was neither pleaded nor tried by consent, the district court erred in determining that Husband had acquired a premarital interest in the home. We therefore reverse and remand for further proceedings.

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

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[1] At trial, a general contractor called as an expert witness for Wife estimated that he would have charged approximately $804,000 to build the home in 1997.

[2] In Oldroyd I, we declined Husband’s invitation to construe the district court’s decision as granting him an equitable interest in Wife’s premarital property because the court’s findings did not support such a determination: “[T]he district court did not rule that the house was marital property that should be divided unequally” and “did not purport to award an interest in [Wife’s] separate property to [Husband] to achieve an equitable result.” Oldroyd I, 2017 UT App 45, ¶ 9 & n.5, 397 P.3d 645. “Rather, the court determined that [Husband] had ‘acquired a separate premarital interest’ in the house.” Id. ¶ 9.

[3] Previous cases addressing equitable division of premarital assets have involved contributions made to those assets during the course of the marriage. See, e.g., Lindsey v. Lindsey, 2017 UT App 38, ¶¶ 6–7, 13, 392 P.3d 968; Elman v. Elman, 2002 UT App 83, ¶ 20, 45 P.3d 176. Thus, Utah courts have not had the opportunity to assess the extent to which one spouse’s premarital contributions to another spouse’s premarital assets may be considered in the context of a divorce court’s equitable division of property. However, Wife does not appear to have asserted that the court was precluded from considering Husband’s premarital contributions, and the parties’ presentation of evidence at trial indicates that both were acting on the assumption that Husband’s premarital contributions were relevant to his equitable claim for a portion of Wife’s premarital asset. We therefore assume, without deciding, that premarital contributions may be relevant in assessing whether equity requires division of a premarital asset.

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