It is, to the best of my knowledge, the law of the state that issued the alimony award. You will need to check with an attorney in both the state that issued the alimony award and the state where the ex-spouse has relocated to be sure.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: alimony, Relocation, spousal support2022 UT App 122
THE UTAH COURT OF APPEALS
STEPHANIE THAYNE,
Appellee,
v.
DEVIN THAYNE,
Appellant.
Opinion
No. 20200598-CA
Filed November 3, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 204900701
Devin Thayne, Appellant Pro Se
David C. Blum, Attorney for Appellee
SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN concurred.[1]
BENCH, Senior Judge:
¶1 Devin Thayne appeals the district court’s order granting Stephanie Thayne’s motion to dismiss his petition to modify child and spousal support. We agree with the reasoning of the district court and affirm.
BACKGROUND
¶2 Devin and Stephanie[2] were married in June 2010 and separated in April 2019. At the time of their separation, the parties lived in California, and their divorce proceedings therefore commenced in California. As part of their divorce proceedings, a hearing was held on December 10, 2019. At the hearing, the parties came to an agreement regarding custody and visitation schedules of their three minor children, and the court entered a stipulation and order addressing those issues that same day. At this time, both parties were anticipating a relocation to Utah, and the stipulation recognized this “period of transition” and noted, “Further order as to custody will be addressed in Utah . . . if necessary.”
¶3 At the December hearing, the parties also stipulated as to other issues, including property division, spousal support, and child support. This stipulation mentioned the impending move to Utah and the likelihood that, due to the move, “[Devin’s] annual income of $141,000 will decrease to approximately $90,000– $100,00 per year.” The stipulation also provided that Devin would pay $840 per month in spousal support, beginning January 1, 2020, and continuing for, at most, only four years (roughly half the length of the nearly nine-year marriage), and that Stephanie was “to make reasonable efforts to become self-supporting within a reasonable period of time.” Additionally, the stipulation provided that Devin would maintain health insurance for the children and that “upon [Stephanie’s] employment,” she would also provide health insurance for the children “if available at no or reasonable cost through her employment.”
¶4 The parties did, as planned, move to Utah in December 2019, and Devin’s income did resultingly drop to $90,000. Thereafter, on February 18, 2020, the California court entered a judgment of dissolution (the Judgment). The Judgment incorporated the parties’ stipulations made at the December hearing and finalized the divorce.
¶5 About two months later, on April 22, 2020, Devin filed a petition to modify the Judgment in Utah. Devin argued that “his dramatic reduction in income” amounted to a “substantial and material change in circumstances” that warranted a change to the previously ordered spousal support and child support amounts. Devin argued the changes were also warranted by a change in Stephanie’s income, stating, “[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income.” Additionally, Devin’s petition to modify raised issues surrounding the mechanics of the children’s visitation, arguing that the Judgment “fails to detail how the parties are to exchange the minor children” considering that the two older children were in school and the youngest child was not yet school-aged. He requested that he be allowed to return all three children in the morning instead of having to wait to return the youngest child at noon, as provided for in the Judgment.
¶6 Stephanie responded with a motion to dismiss or, alternatively, a motion for summary judgment. She argued that Devin’s petition to modify rested on changes in circumstances that were foreseeable when the Judgment was entered and that, therefore, his petition must be dismissed.
¶7 The district court granted Stephanie’s motion to dismiss in its entirety. The court determined that there was no indication that the Judgment was not already calculated based on Devin’s anticipated reduction in salary to $90,000–$100,00 per year. The court explained,
The order was finalized and entered after the move and the initial payments were set to be made while the parties already were to live in Utah. It stretches the imagination of the Court to the breaking point to believe that the California court would enter an order fully expecting income to have dropped before even the first payment would be made.
As to spousal support, the court recognized that “differences in earning potential . . . should be given some weight in fashioning the support award” and that this factor was presumptively already considered by the California court making the award. (Quotation simplified.) And as to visitation, the court pointed out that the issue was addressed in the Judgment, which specifically provided that the children would be delivered “at school or if no school at noon.” The court therefore determined that it did not find a “significant unforeseen change in circumstances” to support modification. (Emphasis added.) Devin now appeals.
ISSUE AND STANDARD OF REVIEW
¶8 Devin argues that the district court erroneously dismissed
his petition to modify, which dismissal was based on its determination that the facts alleged in the petition did not show an unforeseen substantial change in circumstances that would warrant modification. “We review a decision granting a motion to dismiss for correctness, granting no deference to the decision of the district court.” Miller v. Miller, 2020 UT App 171, ¶ 10, 480 P.3d 341 (quotation simplified).[3]
ANALYSIS
¶9 A party may seek changes to an award of spousal or child support when there has been a substantial change of circumstances not addressed in the divorce decree. See Utah Code Ann. § 30-3-5(11)(a) (LexisNexis Supp. 2022) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not expressly stated in the divorce decree or in the findings that the court entered at the time of the divorce decree.”); id. § 78B-12-210(9)(a) (“A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”). But the changes in circumstances that Devin raises in his petition that have occurred since the stipulation was drafted in December 2019—namely, his decreased income and Stephanie’s availability for employment—were foreseen and addressed in that stipulation. Furthermore, these changes in circumstances that Devin raises had already occurred by the time the Judgment incorporating that stipulation was eventually entered in February 2020.
¶10 The Judgment orders Devin to pay “child support in the amount of $2,160 per month” and “spousal support in the amount of $840 per month” commencing in January 2020, shortly after relocation. And in the same section, the Judgment clearly recognizes Devin’s impending income reduction: “[Devin] anticipates that [his] annual income of $141,000 will decrease to approximately $90,000–$100,000 per year due to the relocation of himself and his employment from California to Utah.” Thus, the Judgment anticipated Devin’s lowered income, and we agree with the district court that it is implausible that the California court would have made support awards based on Devin’s old income when it recognized that a much lower income would be in effect before any payments became due.
¶11 This same support section of the Judgment also anticipates Stephanie’s future employment. The Judgment limits the maximum length of spousal support to four years[4] and states, “[Stephanie] is placed under a Gavron Admonition to make reasonable efforts to become self-supporting within a reasonable period of time.”[5] Further, the Judgment clarifies that “upon [Stephanie’s] employment[,] [she] shall obtain health insurance for the parties[’] minor children if available at no or reasonable cost through her employment.” In fact, even Devin’s petition to modify recognized that the Judgment addresses Stephanie’s future employment:
[U]pon information and belief, Stephanie has initiated employment or other means to generate a regular and consistent income. Indeed, the Judgment indicates Stephanie was required to make efforts to secure full-time employment. As such, Stephanie either has secured regular employment or now possesses the ability to secure gainful full-time employment. At a minimum, Stephanie should be imputed income at a reasonable amount considering her education, training, certificates, employment history, and any other factors reasonably considered by the Court.
So Stephanie’s return to employment was clearly anticipated in the Judgment.[6]
¶12 Thus, the Judgment addressed both the anticipated drop in Devin’s income and the possibility of Stephanie’s return to employment and accounted for them when ordering child and spousal support amounts. And therefore, these employment changes do not amount to unanticipated changes that would warrant a modification of the support amounts. Therefore, we see no error in the district court’s determination that even when viewing the alleged facts in Devin’s favor, no substantial change in circumstances had occurred that was not addressed in the Judgment; and consequently, we see no error in the dismissal of Devin’s petition to modify.
¶13 Devin, however, points to language in the stipulation that he argues implies that the Judgment was “a very loose order intended only to last until more was known in Utah.” First, he points to a general provision at the close of the Judgment stating, “The issues of child custody and visitation, child support and spousal support are transferred to the county in which the parties’ minor children will be residing in Utah effective immediately upon entry of this judgment.” But we do not agree that this language is an indication that the support awards should be revisited upon relocation; instead, where the parties had already relocated upon entry of the Judgment, the language simply demonstrates an awareness that any unanticipated issues or changes of circumstances that might arise in the future (in the nearly fifteen years before the children would all become adults) would be appropriately dealt with in Utah instead of California.
¶14 Second, Devin relies on language in the child custody stipulation that mentions relocation and then states, “Further orders as to custody will be addressed in Utah upon parties’ move, if necessary.” However, this mention (and in particular its “if necessary” limitation) simply clarifies what would happen if changes were warranted in the future and is not an indication that the California court expected the divorce decree to be modified upon relocation. Furthermore, this reference specifically mentions only the modification of child custody, which is largely unrelated to the income changes raised in Devin’s petition to modify.
¶15 Third, Devin points to the Judgment’s failure to address the issue of how the children would be claimed on the parties’ taxes as evidence that the Judgment was intended to be only temporary. But, again, this omission does not suggest that the California court expected that its support awards would be recalculated upon arrival in Utah.
¶16 Devin also raises contract principles to argue that the intent of the parties regarding future modification should have been considered by the district court when determining if modification was appropriate. But even assuming the intent of the parties would be relevant, there was no ambiguity in the stipulated agreement suggesting that immediate modification was intended after relocation to Utah, nor was there any indication that this remained an open question. Although Devin tries to introduce additional materials that he argues show such an intention, even under contract principles those materials would not be considered because of the unambiguous nature of the parties’ stipulation.[7] See Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179 (“When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling. If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” (quotation simplified)).[8]
CONCLUSION
¶17 We do not see an error in the district court’s determination that the changes in circumstances Devin raises were already addressed by the original Judgment. And as a result, we see no error in the court’s denial of Devin’s petition to modify.[9] We therefore affirm.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: child custody, Child Support, contract, decree of divorce, divorce, income, increase, petition to modify, settlement, spousal support, stipulationThis is an interesting question because if you have been financially independent of your spouse during your five year separation that implies that you don’t need financial support from your spouse.
Contrastingly, if for the past five years you have been destitute, have made requests of your spouse for financial support that your spouse has rejected, and have run up debts and other liabilities to meet your reasonable living expenses, then you would likely have a very strong basis for seeking alimony.
If, however, you have been separated from your spouse for five years and counting without having to rely for your financial support on a source other than your own income or other earnings in all that time, it is hard to imagine how you could make a compelling argument for deserving and alimony award.
One exceptional situation needs to be mentioned: if you have been self-supporting, but at a greatly reduced/lesser lifestyle, (i.e., you went from living at a certain level with your spouse because of your spouse’s affluence and ability to afford such a lifestyle to living more modestly on a modest income), then it may be possible for you to argue that you are entitled to alimony so that you can reach, or at least get as close as reasonably possible to, the lifestyle to which he became accustomed while married. One counter argument you could encounter (and I believe this argument would have merit) is that you have been self-supporting for so long — albeit at a lower level of income than you enjoyed before separation — that one can reasonably conclude that your change in lifestyle is no longer involuntary imposed upon you but a matter of your own personal choice.
And let’s and on a note of adding insult to injury: imagine that you had no choice but to pull yourself up by your own bootstraps after separation because your spouse refused to provide any financial support for you. Could you make some kind of argument that but for your spouse’s greedy neglect, you would have never needed to become self-supporting? In my legal opinion, the answer is: probably not. The court would not be looking to how or why you became self-supporting, and whether the circumstances under which you became self-supporting were “fair,” but only that you are now currently self-supporting.
Bottom line: if you have been living financially independent of your spouse for the past five years and counting, and if you are not living hand to mouth, it is unlikely that you will succeed in seeking and alimony award.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: ability to pay, accustomed, alimony, basic, change, destitute, financially dependent, financially independent, involuntary, length, lifestyle, need, separation, spousal support, voluntary, yearsAllen v. Allen – 2021 UT App 20
http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Allen v. Allen20210225_20190369_20.pdf
2021 UT App 20
THE UTAH COURT OF APPEALS
REBECCA ELLEN ALLEN, Appellee,
v.
KENT DARIUS ALLEN,Appellant.
Opinion
No. 20190369-CA
Filed February 25, 2021
Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 154906438
Sara Pfrommer and Kathleen McConkie, Attorneys for Appellant
Russell Yauney, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 Kent Darius Allen appeals the district court’s supplemental divorce decree in his divorce from Rebecca Ellen Allen. Kent[1] contends that the court erred in finding him in contempt and in its determinations regarding alimony, child support, and child custody. We reject his arguments and affirm.
BACKGROUND
¶2 Kent and Rebecca were married in 2004 and have five minor children. They separated in September 2014, when Rebecca moved to Utah with the children and Kent stayed in Texas. During this time, Rebecca worked part-time and provided full-time care for the children, while Kent did not work but received disability payments based on a 100% disability rating from the United States Department of Veterans Affairs (VA).
¶3 Rebecca filed for divorce in Utah in October 2015. Kent moved to Utah in the spring of 2016. Early in the litigation, in July 2016, Rebecca moved for an award of half of retroactive benefits Kent received from the VA. Rebecca claimed she was entitled to $56,171 of those benefits as rehabilitative spousal support. In responding to the motion, Kent filed a declaration in which he did not dispute receipt of the VA benefits. And in his August 2016 financial declaration, Kent acknowledged receiving around $89,900 as a “VA Disability Settlement minus attorney fees.”
¶4 A domestic relations commissioner conducted a hearing in August 2016. The commissioner recommended, among other things, that Kent and Rebecca have temporary joint legal custody of their children and that Rebecca have temporary physical custody. The commissioner also recommended that Kent pay Rebecca $44,500 from the VA benefits and around $1,200 in monthly child support. These recommendations were memorialized in a temporary order entered and counter-signed by the district court in October 2016 (the Temporary Order).
¶5 Kent objected to the Temporary Order. The district court held a hearing on November 3, 2016, in which it overruled the objection and adopted the commissioner’s recommendation. It also ordered Kent to pay Rebecca her share of the VA benefits “within 30 days.”
¶6 On December 9, 2016, Rebecca moved for an order to show cause, asserting, among other things, that Kent was in contempt for not complying with the court’s order to pay her portion of the VA benefits. Rebecca thus asked for a judgment against Kent in the amount of $44,500. After a hearing, the commissioner entered an order certifying the issue of contempt for Kent’s “failure to pay the spousal support award of [$44,500]” as required by the Temporary Order. The commissioner’s order also stated that a “judgment in the amount of [$44,500] for spousal support arrears shall enter for the period of October 28, 2016, through March 2, 2017” (the Judgment).[2] The district court counter-signed the Judgment.
¶7 In May 2017, Rebecca filed another motion for an order to show cause, asserting that Kent should be held in contempt for failing to pay child support between December 2016 and April 2017. Kent responded that he had already paid $11,294 of his social security benefits to Rebecca and that those funds covered his child support obligation for the time period at issue as well as for four additional months. After hearing argument, the commissioner certified the issue of Kent’s alleged contempt. The commissioner also ordered entry of judgment against Kent for $4,792 in past-due child support from December 2016 through May 2017. The court counter-signed the order entering judgment for $4,792.
¶8 Rebecca filed yet another motion for an order to show cause in October 2017, this time asserting that Kent had not paid child support from June to September 2017. After a hearing, the commissioner certified the contempt issue and awarded judgment to Rebecca for $4,722 in past-due child support for the months of June through November 2017. The court countersigned this order. Consequently, Kent had accumulated judgments against him totaling $54,014 for unpaid child support and retroactive spousal support.
¶9 Meanwhile, Kent filed various motions in which he argued that the division of his VA benefits, as ordered in the Temporary Order, was impermissible under federal law and that the $44,500 Judgment should be vacated. The commissioner had certified the issue for trial, but before trial, the district court concluded that the VA benefits can be used for spousal support and, therefore, there was no basis to vacate the Judgment.
¶10 The court entered a bifurcated divorce decree in August 2017. The issues of child support, custody, and contempt were tried to the bench in 2018. Additionally, at trial, Kent once again argued that the Judgment should be vacated. He proposed “two ways to fight that judgment.” First, he renewed his argument that his VA benefits were beyond the court’s reach under federal law. Second, he objected to characterizing the $44,500 award in the Judgment as spousal support because “the court has engaged in none of the analysis required to determine a reasonable amount for spousal support or to make such [an] award.” As for Rebecca, she clarified that she was not asking for “future spousal support” but that she “expected that judgment to be enforced.”
¶11 Rebecca and Kent each testified at trial. Notably, the court found Rebecca “to be highly credible,” while it found Kent “not to be credible” based on his “testimony, conduct, and a series of inconsistencies.”
¶12 With regard to the Judgment, the court disagreed with Kent’s argument that it was erroneous for $44,500 in spousal support to remain in effect unless the court conducted an analysis of Rebecca’s needs and his ability to pay. It explained,
There was a court order requiring [Kent] to pay [Rebecca] $44,500. [Kent] did not do so. Judgment was, therefore, appropriately entered against [Kent]. This Court need not undergo any sort of analysis concerning the parties’ current financial needs or [Kent’s] ability to pay in order to permit the judgment to remain in effect.
The court also decided, in the alternative, that “[e]ven if . . . such an analysis was required,” Kent “had the ability to pay and that the needs analysis at the time of the hearing on the [motion] for temporary orders supported the $44,500 award to [Rebecca] and subsequent judgment against [Kent].” The court thus proceeded to compare, albeit briefly, Kent’s and Rebecca’s incomes and assets.
¶13 The court evaluated Rebecca’s assertion that Kent was in contempt for not paying the $44,500 from the VA benefits and not paying child support from December 2016 through September 2017. As an initial matter, the court determined that the Temporary Order requiring those payments was lawful. Then, in evaluating contempt, the court first found that Kent had the ability to comply with the Temporary Order at the time it was entered and had the present ability to comply with it. In support of this finding, the court rejected Kent’s assertion that he had spent all the VA benefits (nearly $90,000). The court also found that despite Kent’s “disability rating and the fact that he has not held a regular job in a number of years, the evidence at trial showed that [Kent] is physically and mentally able to work, yet he chooses not to.” The court further found that Kent had “access to significant financial support from his family which support could be used to help” Kent obtain employment or pay the outstanding amounts he owed. Second, the court found that Kent undisputedly “had knowledge of all the Court’s orders requiring him to pay [Rebecca] $44,500 from his VA past-due benefits and to pay child support.” Third, the court found that Kent had “deliberately chose[n] not to comply” with the orders when he “personally disagree[d]” with them but was “aware—at all times—of the Court’s orders and [its] repeated rejections of his arguments.”
¶14 The court thus held Kent in contempt, finding “beyond a reasonable doubt that, at all times, [Kent] knew what was required of him, had the ability to comply, and intentionally refused to do so.”[3] Indeed, the court found that his “disregard of the Court’s orders—including the multiple times the Court has rejected [his] arguments—was willful, deliberate, and intentional.”
¶15 As a sanction for his contempt, the court ordered Kent jailed for ten days, which sentence could be purged if Kent made certain payments toward child support and spousal support within sixty days and continued to make specified monthly payments thereafter. Additionally, the court ordered Kent to pay Rebecca’s attorney fees incurred “in prosecuting the request for entry of judgment and motions for contempt.”
¶16 The district court also awarded Rebecca sole physical and legal custody of the minor children, while Kent was awarded parent-time. In making this decision, the court considered several factors bearing on the best interests of the children. First, it found that the parties’ past conduct and moral standards favored Rebecca. It reasoned that Kent “testified untruthfully” and had “shown contemptuous disregard of the Court’s orders,” demonstrating that he was “willing to and ha[d] willfully disobeyed the law.” In the court’s view, this “type of conduct suggest[ed] questionable parenting, at best.” The court also reasoned that Kent’s “refusal—for years—to pay the spousal support award or the child support previously ordered . . . while [Rebecca] was struggling to provide for herself and the [children] demonstrate[d] a substantial indifference towards” the children. Although Kent claimed that he took care of the children “in other ways—not just financially, but physically, emotionally, and spiritually,” the court discredited his testimony on this point.
¶17 Next, the court factored in which parent was the primary caretaker and concluded that this factor also favored Rebecca, especially given that she undisputedly had been the children’s primary caretaker since the couple separated in September 2014. In considering this factor, the court found that Kent had “no in-person contact at all with the children” for over a year after they moved to Utah despite his financial ability to see the children in person. The court further found that the children were “well-cared for” and “flourishing with [Rebecca] as their primary caretaker” and that even after Kent moved to Utah, he had displayed “remarkably limited involvement” in the children’s lives. Next, the court considered the factor of the children’s bond with the parents. While the court did not find Kent’s testimony that he had “active involvement and participation” in the children’s lives to be credible, the court found that the evidence concerning Rebecca’s “strong relationship with the [children] was credible and overwhelming.” The court then weighed the factor of which parent was most likely to act in the children’s best interests in favor of Rebecca. The court based this determination on its findings that Rebecca “went out of her way not to speak negatively about” Kent at trial but that Kent made “accusations and insinuations” that Rebecca was an inattentive parent.
¶18 The court considered additional factors, including that the parties “have generally been able to cooperate with each other” even though Kent was “often unreliable.” It found that Kent was “less emotionally stable” than Rebecca and that “[Kent]—despite not being employed or in school—[had] knowingly and intentionally declined to take a more active role in the [children’s] lives.” Indeed, the court reiterated that Kent could have taken “a more active role” in their lives “but he [chose] not to.” Considering all these factors together, the court found by a preponderance of the evidence that awarding sole legal and physical custody to Rebecca, subject to Kent’s right to parent-time, was in the children’s best interests.
¶19 As for child support, the court found that Kent did not owe any child support arrearages before the Temporary Order was entered—the time period from September 2014 until July 2016. The court based this finding on the fact that Rebecca expressly disclaimed entitlement to child support arrearages prior to the Temporary Order. It also relied on the evidence at trial indicating that Kent “did make some payments . . . during this time period, although the amounts were inconsistent and disputed.”
¶20 But the court did determine that “for the period of August 2016 to March 2019,” Kent owed $18,732 in child support arrearages. Using the sole custody worksheet, the court calculated this amount using Kent’s $4,630.62 monthly income and Rebecca’s imputed $1,257 monthly income. In making its calculation, the court credited Kent with the $405 monthly amounts Rebecca received on behalf of the children from social security beginning in August 2016. While entering judgment of $18,732 in favor of Rebecca, the court simultaneously vacated the earlier judgments for overdue child support.
¶21 The court rejected Kent’s argument that he should be given credit for payments he made to Rebecca prior to the Temporary Order—payments he asserted would eliminate any alleged arrearages. The court reasoned that it would be “inappropriate to give [Kent] ‘credit’ for any supposed ‘overpayments’ given that (until now) there has not been a final Court order regarding child support.” It further reasoned that Kent had “an obligation to support his children and that obligation is ongoing and continuous” and that “[t]he presumption, therefore, should not be that [Kent] ‘overpaid,’ but that [Kent] paid whatever he could or desired to, given his ongoing obligation.”
¶22 On the matter of attorney fees, the court had already concluded that under Utah Code section 78B-6-311(1), as “an additional sanction for nonpayment,” Kent would have to pay Rebecca’s attorney fees incurred “in prosecuting the request for entry of judgment and motions for contempt.” The court declined to address whether to award attorney fees under Utah Code section 30-3-3 because the parties had stipulated to paying their own remaining fees.
¶23 The court entered its findings of fact and conclusions of law as well as a supplemental divorce decree. Kent appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 Kent raises four issues on appeal. First, he contends that the district court erroneously awarded a lump sum to Rebecca as alimony without conducting the required alimony analysis. We ultimately do not reach the merits of this issue because Kent does not adequately challenge an independent alternative basis for the court’s decision. See Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12.
¶25 Second, Kent contends that the district court should have given him credit toward his child support obligation. Because district courts have “broad discretion” in awarding child support and “in determining the financial interests of divorced parties,” we “will not disturb such decisions absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶¶ 7–8, 335 P.3d 378 (cleaned up).
¶26 Third, Kent contends that the district court erred in finding him in contempt of court for failing to pay child support and the lump sum to Rebecca. When reviewing a district court’s decision finding a party in contempt, “we review the district court’s findings of fact for clear error and its legal determinations for correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385 P.3d 689 (cleaned up).
¶27 Fourth, Kent contends that the district court erred in granting sole legal and physical custody of the children to Rebecca. “In custody matters, appellate courts generally give the district court considerable discretion because the district court’s proximity to the evidence places it in a better position than an appellate court to choose the best custody arrangement.” Dahl v. Dahl, 2015 UT 79, ¶ 155, 459 P.3d 276 (cleaned up). This broad discretion, however, “must be guided by the governing law adopted by the Utah Legislature.” Id. (cleaned up).
¶28 To the extent any of Kent’s contentions involve challenges to the district court’s factual findings, our “review of such findings is highly deferential, and we will reverse only if the findings are clearly erroneous.” Id. ¶ 149. “We give this deference to the district court because it stands in a superior position from which to evaluate and weigh the evidence and assess the credibility and accuracy of witnesses’ recollections.” Id. ¶ 173 (cleaned up). A district court’s factual findings “are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if the court has a definite and firm conviction that a mistake has been made.” Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).
ANALYSIS
I. Lump Sum as Alimony
¶29 Kent first challenges the district court’s award of $44,500 in spousal support to Rebecca. In particular, Kent contends that the court abused its discretion by entering this award without “conduct[ing] the analysis required under Utah law to determine whether, and how much, spousal support should be” awarded.
¶30 Kent is correct that Utah law requires district courts to consider several factors, known as the Jones factors, when determining alimony. Those factors include “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity or ability to produce income,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(9)(a)(i)–(iii) (LexisNexis Supp. 2020);[4] see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (listing these three factors now codified in Utah Code section 30-3-5). Further, the “court must make sufficiently detailed findings of fact on each statutory factor.” Keyes v. Keyes, 2015 UT App 114, ¶ 33, 351 P.3d 90 (cleaned up).
¶31 The problem for Kent, however, is that the district court rejected his argument about the Jones analysis based on two independent grounds. And we “will not reverse a ruling of the district court that rests on independent alternative grounds where the appellant challenges only one of those grounds.” Kendall v. Olsen, 2017 UT 38, ¶ 12, 424 P.3d 12 (cleaned up).
¶32 Here, the district court first decided that because “[t]here was a court order requiring [Kent] to pay [Rebecca] $44,500” and he “did not do so,” the Judgment was “appropriately entered against [Kent]” and, as a result, the court “need not undergo any sort of analysis concerning the parties’ current financial needs or [Kent’s] ability to pay in order to permit the judgment to remain in effect.” Second, the court decided that even if such an analysis was required, Kent “had the ability to pay and that the needs analysis at the time of the hearing on . . . [the Temporary Order] supported the $44,500 award to [Rebecca] and subsequent judgment against [Kent].”
¶33 Although the district court rejected his argument on these two independent grounds, Kent’s appeal focuses only on the latter basis by arguing that the court inadequately analyzed the Jones factors at trial. His challenge to the former ground—that the Judgment requiring him to pay $44,500 was already appropriately entered against him—is limited to an assertion that the district court engaged in “circular reasoning” by concluding that “because Kent was ordered to pay before, there is no need to conduct the Jones analysis now.” But Kent has the burden to “identify and brief” his reasons for reversal, see id., and this terse assertion does not sufficiently address the effect of an order that had already been reduced to a judgment, nor does it show error in the court’s treatment of the Judgment, see generally Utah R. App. P. 24(a)(8) (setting forth the appellant’s burden to “explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal”). Consequently, Kent effectively has challenged only one of the court’s independent grounds for its ruling, and we therefore are in no position to reverse the district court. See Kendall, 2017 UT 38, ¶ 12. Accordingly, we reject Kent’s challenge to the $44,500 award of spousal support without reaching the merits of the district court’s decision.[5]
II. Child Support
¶34 Next, Kent contends that the district court abused its discretion in determining that he is “more than $18,000 in arrears” with respect to child support for the period of August 2016 to March 2019. While acknowledging that he did not make any child support payments between November 2016 and December 2017, Kent argues that the court should have credited him with payments he made between December 2014 and July 2016, and with $11,294 paid to Rebecca in November 2016.
¶35 The district court declined to give Kent “credit” for any payments he made before the Temporary Order’s entry. In particular, the court deemed it “inappropriate” to give any credits when there had not yet been a final court order regarding child support. It explained that Kent had an “ongoing and continuous” obligation to support his children and that “[t]he presumption, therefore, should not be that [Kent] ‘overpaid,’ but that [Kent] paid whatever he could or desired to, given his ongoing obligation.” On appeal, Kent has not grappled with the court’s rationale, and because he has left the court’s basis for its decision unaddressed, we again conclude that he has not carried his burden to show error in that decision. See Sandusky v. Sandusky, 2018 UT App 34, ¶ 26, 417 P.3d 634 (rejecting an argument where the appellant did not address the basis for the district court’s decision).
¶36 As for the $11,294 paid to Rebecca in November 2016, Kent now contends that these funds were a social security benefit that should have been credited against his child support obligation.[6] In support, he cites Utah Code section 78B-12-203, which states that “[s]ocial security benefits received by a child due to the earnings of a parent shall be credited as child support to the parent upon whose earning record it is based, by crediting the amount against the potential obligation of that parent.” Utah Code Ann. § 78B-12-203(9)(b) (LexisNexis 2018).
¶37 But Kent has not shown, as he must, that he preserved this issue for appeal. To preserve an issue, it “must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Taft v. Taft, 2016 UT App 135, ¶ 35, 379 P.3d 890 (cleaned up). Thus, “the issue must be specifically raised by the party asserting error, in a timely manner, and must be supported by evidence and relevant legal authority.” Warrick v. Property Reserve Inc., 2018 UT App 197, ¶ 12, 437 P.3d 439 (cleaned up). “Issues that are not raised at trial are usually deemed waived.” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 3, 330 P.3d 762 (cleaned up). Further, an appellant’s brief must contain “citation to the record showing that the issue was preserved for review” or “a statement of grounds for seeking review of an issue not preserved.” Utah R. App. P. 24(a)(5)(B).
¶38 To demonstrate that he preserved the issue regarding the $11,294 and section 78B-12-203, Kent cites one page of his response to one of Rebecca’s motions for an order to show cause. There, Kent quoted the statute and stated that the social security benefits Rebecca received from his employment “is all to be credited as child support payments.” But this document was filed over a year and a half before trial, and Kent did not again address section 78B-12-203 in his trial brief or in his supplemental trial brief—even when discussing the $11,294 payment. As a result, and despite an earlier attempt to raise the issue, Kent did not raise the issue in a timely manner such that the district court had an opportunity to consider it at the time the court was resolving the child support issues at trial. Kent thus did not preserve this issue regarding section 78B-12-203 and we do not consider it further.
¶39 Kent also complains that the court used the sole custody worksheet in calculating child support arrearages. He claims this calculation was erroneous because he had “joint custody” under the Temporary Order. Although the Temporary Order gave “joint legal custody” to both parties, it gave “temporary physical custody” to Rebecca. In other words, the Temporary Order gave Rebecca sole physical custody of the children. Because the custody worksheet for purposes of child support is based on physical, not legal, custody, we perceive no error in the court’s use of the sole custody worksheet. Cf. Burggraaf v. Burggraaf, 2019 UT App 195, ¶¶ 34–35, 455 P.3d 1071 (seeing no error in the court’s use of the sole custody worksheet where the mother had sole physical custody in practice).
¶40 For the foregoing reasons, Kent has not shown that the district court abused its discretion in holding him accountable for $18,732 in child support arrearages.
III. Contempt
¶41 Kent contends that the district court erred in finding him in contempt based on his failure to comply with the orders to pay child support and $44,500 to Rebecca. “A finding of contempt is proper only when the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” LD III LLC v. Davis, 2016 UT App 206, ¶ 13, 385 P.3d 689 (cleaned up).
¶42 Kent’s contention on appeal centers on only one of the relevant factors: his ability to comply with the court’s orders.[7] More specifically, he focuses on the court’s findings regarding his ability to pay. In so arguing, he maintains that “he cannot give Rebecca the ordered $44,500 because he does not have it; he used it for his own needs with respect to housing and other related items when he moved.” He also argues that the court erred in finding that he had the ability to work despite his 100% disability rating.
¶43 Kent testified that he had spent all the VA benefits (nearly $90,000) by the time of the hearing on the Temporary Order. But the district court found that this claim was “false” and contrary to Kent’s representations to the commissioner. The court also found that Kent’s “claim that he needed to spend all $90,000 on furnishing his new residence and other household expenses in Utah is simply not credible.” Kent asserts that the court’s credibility determination in this regard is “based on no evidence at all” when Rebecca introduced “no evidence to counter Kent’s testimony that he had spent” all the VA benefits. But the court was “not required to believe [Kent] simply because he presented more evidence than [Rebecca] or because [she] did not directly contradict his . . . testimony.” See Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204. Indeed, “we give great deference to a trial court’s determinations of credibility based on the presumption that the trial judge, having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties, is in a better position to perceive the subtleties at issue than we can looking only at the cold record.” Id. (cleaned up). Kent has not shown that we should deviate from the considerable deference we owe to the district court’s factual findings.
¶44 Kent also claimed in the district court that he is unable to work based on his 100% disability rating. But the court rejected this claim, finding that Kent presented “no corroborating evidence other than” hearsay statements. It also found that despite Kent’s “disability rating and the fact that he has not held a regular job in a number of years, the evidence at trial showed that [Kent] is physically and mentally able to work, yet he chooses not to.” The court based this finding on testimony that Kent, “whatever his limitations might be, leads an active lifestyle,” including swimming, hiking, and taking jiu-jitsu classes. In Kent’s view, the court relied on “random incidents” and had no evidence that he “was able to work any kind of job.” But Kent’s cursory argument does not show how the court’s factual findings were “in conflict with the clear weight of the evidence” and does not convince us that “a mistake has been made.” See Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).
¶45 Kent also suggests that his 100% disability rating precluded the district court from finding him able to work, and he implies that the court’s finding might jeopardize his disability benefits. But because he provides little legal authority and analysis to support these suggestions, he has not carried his burden to establish error. See Utah R. App. P. 24(a)(8) (“The argument must explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal.”). For these reasons, we conclude that Kent has not shown error in the district court’s decision finding him in contempt.
IV. Child Custody
¶46 Kent next contends that the district court erred in granting sole legal and physical custody of the children to Rebecca. In so arguing, Kent stresses that the court based its decision “in large part” on its belief and “misplaced anger” that “Kent exhibited poor moral character by failing to pay child support” as ordered. He also maintains that he overpaid on child support.
¶47 In determining custody, the court “shall consider the best interest of the child” and, in doing so, may consider any factors it deems relevant. Utah Code Ann. § 30-3-10(2) (LexisNexis Supp. 2020). The Utah Code identifies a number of potentially relevant factors, including but not limited to “the parent’s capacity and willingness to function as a parent,” “the past conduct and demonstrated moral character of the parent,” the “emotional stability of the parent,” the “parent’s financial responsibility,” “who has been the primary caretaker of the child,” and the “relative strength of the child’s bond with the parent, meaning the depth, quality, and nature of the relationship between the parent and the child.” Id.; see also id. § 30-3-10.2 (2019) (setting forth similar factors for consideration in determining whether the child’s best interest would be served by ordering joint legal custody or joint physical custody).
¶48 In this case, Kent overlooks that the district court conducted a detailed analysis of many of the custody factors. See supra ¶¶ 16–18. On appeal he does not assail the majority of that analysis; instead, as stated, he limits his challenge to the court’s inclusion of his history of nonpayment of child support. And he has not persuaded us that the court was wrong to consider his failure to pay child support in its analysis.[8] Moreover, while Kent believes that the court’s custody decision was driven by its consideration of his nonpayment, he has not established that this factor overwhelmed the rest of the custody factors. Simply put, nothing in the court’s analysis or Kent’s argument persuades us that the court erred in making its custody decision.
V. Attorney Fees on Appeal
¶49 Finally, Rebecca requests that this court award her attorney fees on appeal on two grounds. First, Rebecca asserts that the district court awarded her attorney fees related to Kent’s contempt with respect to the $44,500 and child support and that she is thus entitled to attorney fees on appeal for defending the appeal on that issue. Second, Rebecca asks this court to remand for the district court to make findings under Utah Code section 30-3-3 to support an award of attorney fees to her for all issues on appeal.
¶50 Generally, “attorney fees are awardable only if authorized by statute or by contract.” Greyhound Lines, Inc. v. Utah Transit Auth., 2020 UT App 144, ¶ 55, 477 P.3d 472 (cleaned up). This court ordinarily will award appellate attorney fees “when a party was awarded fees and costs below and then prevails on appeal.” Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d 296. Because the district court awarded Rebecca attorney fees related to her “request for entry of judgment and motions for contempt” pursuant to statute under Utah Code section 78B-6-311(1) and because she has prevailed on that issue on appeal, see supra ¶¶ 41–45, we grant her request for appellate fees related to that one issue. See Tobler, 2014 UT App 239, ¶ 48; cf. Telegraph Tower LLC v. Century Mortgage LLC, 2016 UT App 102, ¶ 52, 376 P.3d 333 (awarding appellate attorney fees on the single issue on which appellees prevailed below and successfully defended on appeal); Macris v. Sevea Int’l, Inc., 2013 UT App 176, ¶ 53, 307 P.3d 625 (awarding partial attorney fees on appeal for the issues on which the appellee was successful on appeal). We thus remand this case to the district court to calculate Rebecca’s reasonable attorney fees incurred in defending that issue on appeal.
¶51 As for Rebecca’s suggestion that she could be “entitled to attorney fees for the entirety of the appeal” under Utah Code section 30-3-3, we conclude that she is not entitled to such an award. The parties stipulated to paying their own attorney fees incurred during the district court proceedings, and the district court expressly declined to consider whether to award fees under Utah Code section 30-3-3. Because the district court did not award attorney fees based on section 30-3-3 to Rebecca below and because she has not otherwise established that she should be awarded her remaining attorney fees on appeal, see Tobler, 2014 UT App 239, ¶ 48, we decline Rebecca’s invitation to instruct the district court to analyze her general claim for appellate attorney fees.
CONCLUSION
¶52 Kent has not established error in the district court’s decisions. Accordingly, we affirm the supplemental decree, but we remand to the district court for the limited purpose of calculating Rebecca’s attorney fees reasonably incurred on appeal, insofar as they are related to the issue of contempt.
[1] Because the parties share the same last name, we refer to each by their first name, with no disrespect intended by the apparent informality.
[2] The Judgment was “inadvertently entered in the amount of $45,000 instead of the $44,500 included in the Temporary Order and requested by [Rebecca] in her motion for order to show cause.” The court ultimately modified the Judgment to the correct amount of $44,500.
[3] Given that the court’s purpose in entering the contempt finding was “to vindicate [its] authority by punishing [Kent] for his willful disobedience of the Court’s previous orders,” the contempt proceeding was criminal in nature and required that Kent’s contempt meet the higher standard of beyond a reasonable doubt rather than the lower civil standard. See Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 2, 302 P.3d 833 (“The characterization of a contempt proceeding determines the applicable standard of proof: criminal contempt must be proven beyond a reasonable doubt; civil contempt must be proven by clear and convincing evidence.”).
[4] Because recent statutory amendments since the relevant time are immaterial in this case, we cite the current version of the Utah Code.
[5] Kent raises other arguments attacking the propriety of the lump sum award to Rebecca. But because Kent has not adequately addressed the earlier Judgment, we need not reach these arguments.
[6] 6. Kent also suggests that Rebecca has received more than $18,000 related to social security disability payments since August 2016 and that the court refused to comply with its obligation to credit those payments against Kent’s child support obligation. The record does not support Kent’s contention. To the contrary, the court’s findings of fact show that the court did reduce Kent’s arrearages by “the amounts received by [Rebecca] on behalf of the [children] in the amount of $405 from social security beginning in August 2016.”
[7] Kent also argues that he could “not be held in contempt of an order that is void because it was beyond the court’s jurisdiction to issue.” But “the only way a party can successfully attack an order which he is charged with refusing to obey is if the party can show it to be absolutely void.” Iota LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 20, 391 P.3d 239 (cleaned up). To demonstrate that the district court’s orders were void, Kent would have to show that the court lacked subject matter or personal jurisdiction over him at the time the orders were entered. See id. ¶ 21. Kent has not made that showing. He argues only that the federal law applicable to his VA benefits “implicates the court’s subject matter jurisdiction.” But that cursory suggestion does not show that the district court lacked “authority over the general class of cases to which the particular case at issue belongs.” See id. ¶ 22 (cleaned up).
[8] 8. Kent asserts that the “only orders that [he] ever failed to obey were ones that he believed had been issued by the court without jurisdiction, which he promptly and actively challenged.” But, as explained above, see supra note 7, Kent has not shown that the court lacked jurisdiction to enter its orders. And “a party may not challenge a court’s order by violating it.” Iota LLC, 2016 UT App 231, ¶ 16 (cleaned up). Rather, “[t]he orderly and expeditious administration of justice . . . requires that ‘an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.’” Id. (quoting Maness v. Meyers, 419 U.S. 449, 459 (1975)). Indeed, the district court here correctly observed that “‘a party is foreclosed from making a private determination that a court’s order need not be obeyed because it is legally incorrect.’” (Quoting id. ¶ 17.) We thus are not persuaded by Kent’s excuse for not complying with the orders.
Tags: alimony, child custody, Child Support, contempt, custody, spousal support, Utah Court of AppealsI was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?
Can you try? Yes. Will you succeed? Probably not. Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: alimony, back to court, court, court orders, decree, defrauded, demonstrate, difficult, disabled, divorced, ex-husband, ex-spouse, ex-wife, expensive, extremely difficult, extremely expensive, fail, independently, lied to, money, objectively, persuade, proof, spousal support, succeed, try, verifiableI was divorced and lied to during my divorce and I am disabled can I take my ex back to court for spousal support?
Can you try? Yes.
Will you succeed? Probably not.
Unless you can prove (not persuade, but demonstrate by objectively, independently verifiable proof) that your ex-husband defrauded the court, you’re likely stuck with the decree and court orders you’ve got. This is extremely difficult in its own right. This is also extremely expensive and most people don’t have that kind of money.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: alimony, back to court, court, court orders, decree, defrauded, demonstrate, difficult, disabled, divorced, ex, ex-husband, ex-spouse, ex-wife, expensive, independently verifiable, lied to, most people money., objectively, persuade, proof, spousal support
What happens after an affair when you have kids?
I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.
If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.
But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).
Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.
While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.
If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.
Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.
Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:
(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.
(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:
(i) engaging in sexual relations with an individual other than the party’s spouse[.]
(See Utah Code § 30-3-5(9)(c))
What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):
¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.
¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.
*****
¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”
¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.
¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.
¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.
¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.
¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: 2019 UT 61, 452 P.3d 1134, adulteress, affair, alimony, award, child custody, child custody evaluation, Child Support, demonstrated moral character, distrust, divorce, divorce case, Divorce Court, divorce lawyer, effect, emotional, excessive time, extramarital affair, fault, favors, financial, fit, fitness, Gardner v. Gardner, harm, hate, judge, kids, neglect, parent, past conduct, physical, psychological, punished, sexual relations, spousal support, spouse, Supreme Court of Utah, sympathizers, unfit, unrepentant adulterer, Utah Code § 30-3-5(9)How can I protect my assets before getting married without prenup?
Short answer: One option (not a very good one, frankly, but about the best there is under the circumstances as you describe them in your question) is: 1) own no major/valuable property before you are married (in other words, your spouse would probably not seek (and the court would probably not award to your spouse any part of) things like your clothes and personal effects, so you could live in a house and drive a car you lease and thus have no such “big ticket” items that could be sold and the proceeds of sale awarded to your spouse in divorce; 2) save nothing in the bank or in investments and retirement accounts, so that there is nothing like in which your spouse could try to claim an interest; and 3) ensure that you do not earn more than your spouse does, so that your spouse cannot make an easy argument for alimony.
Your real question may be this instead: How can I prevent losing too much (being treated unfairly) financially in divorce? If that is your question, it is a very good and very common one.
After all, most reasonable people would agree that what a couple acquires together during marriage is considered “their” property, “our” property, instead of “there’s yours and there’s mine”.
For example:
The decision to purchase the house and the decision to have one spouse be the primary breadwinner and the other the children’s primary caretaker was made together, for mutual benefit. The spouse with the full-time job knew in advance that he/she would be sharing the house and retirement funds with his/her spouse and worked for the money needed to fund these things. It’s understood that these things are marital property that would be divided equally in the event of divorce. It makes sense.
But there are other issues that aren’t so clear cut. Many people—mostly husbands, but a growing number of wives—have this sense that:
are moochers in divorce when they demand that the people to whom they are no longer married nevertheless keep supporting them financially. There is something inherently unfair in that concept.
In response to these questions and concerns the best answers for me personally are:
Utah Family Law, LC | divorceutah.com | 801-466-9277
Tags: alimony, antenuptial agreement, Child Support, contract, disclose, disclosure, engaged, fiancee, finance, gigolo, gold digger, ironclad, marital property, marriage, premarital property, prenup, prenuptial agreement, separate property, spousal supportShould all spousal support/alimony be revoked?
No, but I wouldn’t be upset if it was largely overhauled to reflect circumstances as they are now.
Because originally wives didn’t get half the marital property in divorce, alimony was all wives (wives, not ex-wives because back then a marriage could not be dissolved, so the “wife” not the “ex-wife” received alimony on the principle that a husband had an obligation to support his wife) got. And alimony on that basis hardly seems unfair to the husband, right?
Alimony also served the purpose of preventing the wife—who back when women wives were limited in their abilities to own property, obtain an education, and ply a lucrative trade or profession—would not become a public charge after divorce.
Even today there are situations where a clear, reasonable, and equitable argument for alimony can be made. Say, for instance, a marriage in which the spouse (husband or wife) dissipated marital assets, or where a spouse’s misconduct has caused the innocent spouse to incur expenses for life (for example, if a spouse contracted a chronic STD and then passed it on to the innocent spouse, it would likely be fair to award alimony to that spouse to cover the costs of drugs and treatment; if a spouse beat a spouse so badly that he/she needed treatment going forward, that would warrant alimony; if it could be proven that a spouse prevented the other spouse from acquiring an education or from pursuing a career, that might be a basis for alimony).
But now we allow marriages to be dissolved. Why should a man no longer married to his wife have to continue to support her? Especially in an age where women can and do the same jobs men do earning the same money (don’t believe the claims that women earn less than men because of their being women; it’s bunk—if businesses could get the same work for less pay simply by hiring women, instead of men, then why would they hire men for the job?). Where did we get the idea that a duty to support continues in the absence of a marriage? And why should a man whose wife divorced him simply because she wanted a divorce (and no based upon something like adultery, desertion, willful neglect, habitual drunkeness, cruel treatment, conviction of a felony, contracting a loathsome disease) have to continue to support her? These are questions worth asking.
And more and more states are abolishing or limiting “alimony for life” laws because they simply aren’t fair in today’s world where married women can own property and have as much freedom to pursue a career as men do. Alimony laws that presume women are helpless creatures dependent upon their husband’s to survive are simply outdated and don’t reflect modern reality. Those are the alimony laws that need to change for the sake of fairness and equity both to mean and women.
Utah Family Law, LC | divorceutah.com | 801-466-9277
https://www.quora.com/Should-all-spousal-support-alimony-be-revoked/answer/Eric-Johnson-311
Tags: alimony, alimony for life, lifetime alimony, spousal support