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Tag: trial court

How can you appeal a child custody decision?

You have to show that the trial court that made the child custody decision committed an appealable error.

Many people believe that an appeal of a trial court’s decision is a “second bite at the apple”-style situation, that if you simply don’t like the outcome of the trial, then you can “appeal” the decision and get the appellate court to “re-try” the case on disputed facts. That is not how an appeal works.

The appellate courts do not retry cases or hear new evidence. They do not hear witnesses testify. There is no jury. Appellate courts review the procedures and the decisions in the trial court to make sure that the proceedings were fair and that the proper law was applied correctly (reference: Do appellate courts hear evidence? (LegalKnowledgeBase.com)).

As for just how a trial court’s decision is appealed, that is a rather complicated process that few who are not attorneys (and attorneys either with experience in appellate practice or geniuses who have the time to learn appellate while working their full-time jobs) can undertake successfully.

You also need to know that there is very short time limit for filing an appeal, and that filing an appeal is very expensive (although in some jurisdictions certain kinds of appeals may, under certain circumstances, entitle a parent to the services of an appellate attorney free of charge, such as in termination of parental rights cases in the jurisdiction where I practice law (Utah)).

If you want to appeal a trial court’s decision, talk to an appellate practice attorney immediately.

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

https://www.quora.com/How-can-you-appeal-a-child-custody-decision/answer/Eric-Johnson-311

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Tithing Can Be a Legitimate Personal Expense in the Context of Determining the Alimony Award

Whether my recollection is true or not, I remember being taught in law school that tithing and other regular charitable giving cannot be treated as a personal expense deduction in bankruptcy. It appears that is no longer true (if ever it was). I was taught as a divorce lawyer by people who should have known better that tithing or regular charitable giving could not be considered a personal expense when analyzing need and ability to pay in the context of the alimony award. I don’t know if that was ever true, but I know it’s not true now. In the Utah Court of Appeals decision in the case of 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.” The Utah Court of Appeals 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.” the Utah Court of Appeals decision in the case of Mintz v. Mintz – 2023 UT App 17, at ¶24 , the Utah Court of Appeals opined that “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.”

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

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Twitchell v. Twitchell – 2022 UT App 49 – child custody and support

Twitchell v. Twitchell – 2022 UT App 49

THE UTAH COURT OF APPEALS

JAZMIN S. TWITCHELL,

Appellee,

V.

JOSEPH N. TWITCHELL,

Appellant.

Opinion

No. 20200546-CA

Filed April 14, 2022

First District Court, Logan Department

The Honorable Brian G. Cannell

No. 184100383

Ryan L. Holdaway and Diane Pitcher, Attorneys

for Appellant

Robert L. Neeley, Attorney for Appellee

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

CHRISTIANSEN FORSTER, Judge:

¶1 Joseph N. Twitchell appeals from a divorce decree and appurtenant findings of fact and conclusions of law, arguing that the district court failed to consider relevant statutory factors when forming its custody determination, awarded him less parent-time than the statutory minimum, and erroneously calculated his child support obligation based on an inaccurate accounting of the income of his ex-wife, Jazmin S. Twitchell. We find Joseph’s arguments persuasive on each of these issues, and accordingly, we remand for further proceedings.

BACKGROUND

¶2 Joseph and Jazmin[1] were married in 2016 and share one child (Child), who was born in May 2017. The parties “separated about a year after she was born.” Shortly thereafter, in June 2018, Jazmin filed for divorce, citing “irreconcilable differences.”

¶3 The court issued temporary orders in December 2018, awarding the parties joint legal custody of Child and designating Jazmin as the primary physical custodian, “subject to [Joseph’s] right to parent-time.” As to the parent-time schedule, the court directed the parties to follow the minimum schedule set out in section 30-3-35 of the Utah Code, with Joseph generally “designated as the non-custodial parent,” meaning that he could exercise parent-time on alternating weekends. In addition, the temporary orders granted Joseph an additional overnight with Child “every Thursday night,” with Joseph keeping Child for the weekend when it was one of his parent-time weekends and returning Child to Jazmin’s care by noon on Friday when it was not.

¶4 As the case proceeded to trial, Jazmin filed her financial disclosures, dated November 7, 2019. In her disclosures, Jazmin reported her gross monthly income as $2,111. In this document, under an entry entitled “Employment Status,” Jazmin listed the name of a child care center where she worked at some point. Under an entry for “Name of Employer,” she listed a local private school. Jazmin also filed a supplemental disclosure, dated September 23, 2019, informing the court that she had been serving as a “houseparent” at the private school since September 1, 2019, for which she received no monetary compensation but was provided room and board. Jazmin included a letter from a representative of the school who estimated that the value of the housing and utilities provided to Jazmin was $980 per month.

¶5 A two-day trial was held in December 2019, at which multiple witnesses testified. During Joseph’s testimony, he described instances of physical and verbal altercations beginning a few months into the parties’ marriage. He averred that the first time things became physical between the two was in November 2016, when stress regarding the upcoming holiday season resulted in an argument and Jazmin eventually “going after [him] with a knife,” cutting his hand. Joseph also described a time in Spring 2017 when he and Jazmin were in another argument, and he “went to go give her a hug and apologize . . . and she bit [his] right arm.” He then described one more instance where Jazmin told Joseph “she hated [him], over and over and over again,” which prompted him to threaten leaving with Child. In response, Jazmin “slapped or hit [him] with something across the face.” Joseph also presented photographs of injuries he sustained from each of these incidents, which were admitted into evidence without objection.

¶6 Several witnesses also testified as to their observations of Child’s condition once she went from Jazmin’s to Joseph’s care. One witness testified that on multiple occasions when Joseph received Child from Jazmin, Child had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, to the point that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Joseph also produced evidence documenting incidents of what he characterizes as “assaults” from other children at a daycare while Child was in Jazmin’s care.

¶7 Jazmin testified about her employment history since the parties’ separation. During the marriage, Jazmin had been “a stay-at-home mom,” but she started a job “within two weeks of leaving” to help provide for Child. She testified to working at a child care center from approximately July 2018 until March 2019, when she left to accept an offer to work for higher pay at another daycare center. She worked at that second center full-time until October 2019. Jazmin began serving as a houseparent at the private school in September 2019, a role she was still working in at the time of trial.

¶8 In addition to her financial disclosure in which she reported the aforementioned $2,111 figure, Jazmin also offered her 2018 tax return into evidence. That return listed only the first child care center as her employer and an annual gross income of $7,044.75—which would translate to approximately $587 per month. Jazmin nevertheless confirmed at trial that her gross monthly income was $2,100. When asked if that amount included the $980 value of her housing and utilities, she stated, “No. That . . . doesn’t have anything to do with that.” When asked about her current employment, she testified that she had just started working as a substitute teacher earning $75 per day, which she “guesstimate[d]” she did two to three days per week. Based on that “guesstimate,” Jazmin testified that she earned approximately $813 per month from substitute teaching as opposed to the $2,100 in her financial declaration. Jazmin also confirmed that, at the time of trial, she had no sources of income other than her “service as a houseparent, [and her] income from substitute teaching.”

¶9 Later, on cross-examination, when asked about the $2,111 reported as her gross monthly income in her disclosure, Jazmin admitted that there was actually “no documentation being provided with that [disclosure] that would substantiate that number.” While Jazmin was being cross-examined, the court interjected and expressed its confusion as to whether the $980 value of her housing expenses had been included in her reported monthly income; although Jazmin never answered the court directly, her attorney asserted that it was included within that amount (contradicting Jazmin’s earlier testimony in which she had stated the opposite). Jazmin also stated that at the time of trial, she had actually worked as a substitute teacher on only one occasion up to that point.

¶10 Testimony was also given by a representative of the private school, whom Jazmin had contacted to secure documentation of the value of her housing and utilities. A final draft of a letter from the representative was attached to Jazmin’s supplemental disclosure. But at trial, Joseph offered evidence of an earlier draft of the letter in which the representative had originally stated that the value of what Jazmin received was estimated at $1,800 per month for rent and $1,000 per month for utilities, whereas the amount given in the final letter was $980 for both rent and utilities. The representative testified that she had sent the initial draft to Jazmin’s grandmother asking if it was “acceptable,” and either Jazmin or her grandmother had then asked additional questions about the square footage and what portion of the house Jazmin was actually living in, and whether that was reflected in the amount the representative gave. This prompted the representative to change the amount to $980 in the final letter, based on a “pro-rated amount” that seemed more consistent with the part of the house where Jazmin was living.

¶11 The court issued findings of fact and conclusions of law in April 2020.[2] While it awarded the parties joint legal custody of Child, it also found that it was in Child’s “best interest” that Jazmin be awarded primary physical custody. In support, the court cited the following findings: Jazmin had primary physical custody of Child since the parties separated, and the parties had been “following” the parent-time schedule imposed by the court in its temporary orders, consisting of “alternating weekends, with [Joseph] being awarded overnight every Thursday”; Child was “happy and well[-]adjusted and [was] progressing well developmentally”; Child was “closely bonded to [Jazmin] as she ha[d] been the primary custodial parent since birth, while [Joseph] was the primary bread winner in the family”; it was in Child’s “best interest . . . to maintain a close relationship with her half sister,” of whom Jazmin has primary physical custody; Jazmin had “exhibited good parenting skills” and was “of good moral character, and emotionally stable”; Jazmin had “exhibited a depth and desire for custody of [Child] since . . . birth”; Jazmin had “a flexible work and school schedule and she ha[d] the ability to provide personal care rather than surrogate care”; Jazmin had experience in early childhood education; and Jazmin “exhibited sound financial responsibility” whereas the court was “concerned about [Joseph’s] lack of financial responsibility” based on his debt accumulations. In the findings, the court also expressed its “concern[] about the alleged physical abuse between the parties during the marriage” and therefore found it “appropriate” for the exchanges of Child to occur at a police department safe zone located roughly halfway between the parties’ homes.

¶12 The court additionally noted its consideration of the factors outlined in section 30-3-10.2 of the Utah Code, finding in particular that Child’s “physical, psychological, emotional and development needs will benefit from the parties sharing joint legal custody.” But the court listed several reasons under these factors why joint physical custody would not be appropriate, finding that the “parties do not effectively communicate with each other”; they lived “approximately 60 miles” apart; Joseph “participated in raising [Child] but not to the extent that [Jazmin] did”; “[t]o date there ha[d] not been . . . opportunities for either parent to protect [Child] from any conflict that may arise between the parties, due to [Child’s] age”; and “the parties’ relationship ha[d] stabilized and once these divorce proceedings have concluded it is anticipated the parties will be able to cooperate with each other and make appropriate joint decisions regarding [Child].”

¶13 As to parent-time, the court concluded that Joseph’s parent-time “shall be, until [Child] starts Kindergarten, every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.” And on weeks that ended with Jazmin’s designated weekend, Joseph “shall return [Child] to [Jazmin] by Friday at noon, after his Thursday overnight visit.” The court also concluded that “[t]he parties shall follow the holiday parent time pursuant to Utah Code Ann. § 30-3-35” but that Joseph “shall be awarded six[ ]weeks of extended summer vacation instead of four[ ]weeks, consistent with Utah Code Ann. § 30-3-35 and by stipulation of [Jazmin] at closing arguments.”

¶14 Regarding child support, the court found that Jazmin “earn[ed] $980 per month gross wage from her house parent job” and “approximately $780 per month” from substitute teaching. It therefore calculated her gross monthly income at $1,760 for child support purposes. The court then found that Joseph’s average gross income is $5,011 per month, and therefore his “child support obligation is $582 per month.”

¶15 The court entered a decree of divorce in June 2020, in which it largely echoed the parent-time findings, ordering that Joseph’s parent-time “shall be every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m. On [Jazmin’s] weekend with the parties’ child, [Joseph] shall return [Child] to [Jazmin] by Friday at noon following his Thursday overnight parent time.” And once Child “commences Kindergarten [Joseph’s] parent time shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” The decree did not mention a schedule for holidays or extended/vacation parent-time. The decree also reiterated what the court found to be the parties’ respective incomes, and accordingly it memorialized its decision ordering Joseph to pay $582 per month in child support.

¶16 Joseph promptly appealed the findings of fact and conclusions of law, as well as the divorce decree.

ISSUES AND STANDARDS OF REVIEW

¶17 On appeal, Joseph presents two main issues for our consideration. First, he attacks the district court’s custody determination on two bases, arguing that the court’s custody conclusion and the underlying factual findings are deficient because it failed to consider certain relevant factors and that the court erred in awarding him less than the minimum time provided by statute without explaining a reason to depart from the statutory minimum. “[W]e review the district court’s custody and parent-time determination for abuse of discretion.” T.W. v. S.A., 2021 UT App 132, ¶ 15, 504 P.3d 163. “This discretion is broad; indeed, as long as the court exercises it within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Id. (quotation simplified).

¶18 Second, Joseph challenges the district court’s child support determination, asserting that it made errors in calculating Jazmin’s income, resulting in an inaccurate child support obligation.[3] “In reviewing child support proceedings, we accord substantial deference to the [district] court’s findings and give it considerable latitude in fashioning the appropriate relief. We will not disturb that court’s actions unless the evidence clearly preponderates to the contrary or there has been an abuse of discretion.” Hibbens v. Hibbens, 2015 UT App 278, ¶ 17, 363 P.3d 524 (quotation simplified).

ANALYSIS

I. Custody and Parent-Time

A. Consideration of the Relevant Factors

¶19 Joseph first asserts that the district court erred by failing to adequately consider certain statutory factors in formulating its custody determination. Specifically, he asserts that two factors did not receive the attention he feels they deserved by the district court, namely, any “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent.” See Utah Code Ann. § 30-3-10(2)(a), (d) (LexisNexis 2019). We agree with Joseph that it is not clear from the district court’s findings that it considered evidence regarding abusive behavior by Jazmin, neglect and injuries to Child, or Jazmin’s moral character. Accordingly, we remand for the court to fully evaluate that evidence through supplemented or additional findings.

¶20 “In all custody determinations, the district court’s primary focus must be on the best interests of the child.” Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (quotation simplified). Furthermore, when “determining any form of custody and parent-time” arrangement, the district court “shall consider the best interest of the child and may consider [any] factors the court finds relevant” to that end, including certain factors that are specifically articulated in the Utah Code. See Utah Code Ann. § 30-3-10(2). Importantly, not all these factors are “on equal footing”; instead, the district court generally has “discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” T.W. v. S.A., 2021 UT App 132, ¶ 16, 504 P.3d 163 (quotation simplified).

¶21 Determining which factors the court must address in a given case, and to what degree, presents a tricky task. Inevitably, some factors will loom larger in a given case than other factors, and “[t]here is no definitive checklist of factors to be used for determining custody.” Sukin v. Sukin, 842 P.2d 922, 924 (Utah Ct. App. 1992). Consequently, “courts are not required to render a global accounting of all evidence presented or to discuss all aspects of a case that might support a contrary ruling.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258. On the other hand, a “court’s factual findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). And where significant evidence concerning a particular factor is presented to the district court, findings that omit all discussion of that evidence must be deemed inadequate. See Barnes v. Barnes, 857 P.2d 257, 261 (Utah Ct. App. 1993) (“The record is replete with highly disputed evidence relevant to the custody issue which is not dealt with at all in the findings. The findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children.”); Sukin, 842 P.2d at 925 (“Whenever custody is contested and evidence presents several possible interpretations, a bare conclusory recitation of factors and statutory terms will not suffice. We must have the necessary supporting factual findings linking those factors to the children’s best interests and each parent’s abilities to meet the children’s needs.” (quotation simplified)).

¶22 Joseph asserts that the district court failed to consider evidence presented at trial of domestic violence Jazmin had perpetrated against him as well as neglectful behavior Jazmin had purportedly inflicted on Child. Specifically, Joseph points to his own testimony at trial that Jazmin had slapped him in the face hard enough to leave red marks, had attempted to stab him with a pocket knife, and had bitten him. Joseph also presented photographic exhibits purporting to show his injuries from these incidents. Joseph also points to testimony at trial and an exhibit he introduced into evidence tending to show injuries that Child sustained while she was in Jazmin’s care. One witness testified that when Joseph received Child from Jazmin, Child often had “severe diaper rashes” with blistering, “yeast infections,” and “bite marks on her feet,” and that she was “really dehydrated” to the point of not “even having a bowel movement for a day or two after.” Another witness also confirmed that Child had severe diaper rashes when she came to Joseph, such that Joseph had to seek care from a pediatrician, and testified that Child often “had bite marks on both her hands . . . and her feet.” Finally, Joseph asserts that the court did “not analyze or even mention . . . multiple incidents” in which Jazmin supposedly “engaged in deceitful tactics” during the litigation. Specifically, Joseph asserts that Jazmin instructed a witness on what to testify regarding Jazmin’s income from her houseparent job, that Jazmin and another witness mischaracterized the events that precipitated an incident when the police were called around the time of the parties’ separation, that Jazmin claimed that the parties were married on a date different from that indicated on their marriage certificate, and that Jazmin supposedly attempted to manipulate the testimony of her ex-husband in the case.

¶23 With respect to “evidence of domestic violence, neglect, physical abuse, sexual abuse, or emotional abuse, involving the child, the parent, or a household member of the parent” and “the past conduct and demonstrated moral character of the parent,” see Utah Code Ann. § 30-3-10(2)(a), (d), the court made only the following finding: “[Jazmin] has exhibited good parenting skills, is of good moral character, and emotionally stable.” It then proceeded to emphasize the facts it believed supported Jazmin’s bid for custody: that Jazmin had been Child’s primary caretaker; that Child had a bond with Jazmin’s other child, her half-sister; that Jazmin had made sure Joseph received his parent-time in accordance with the temporary orders; that Jazmin had “a depth and desire for custody”; that Jazmin had a flexible schedule that would allow her to provide personal care for Child; that Jazmin had taken Child to her medical appointments; and that Jazmin was financially responsible, “industrious,” and “goal oriented.” The court made no findings regarding Joseph’s parenting abilities, past conduct, bond with Child, etc., except to express concern that he was in debt.[4] Finally, the court stated that it was “concerned about the alleged physical abuse between the parties” and concluded it was therefore appropriate for them to exchange Child at a police department safe zone.

¶24 “To ensure that the trial court’s custody determination, discretionary as it is, is rationally based, it is essential that the court set forth in its findings of fact not only that it finds one parent to be the better person to care for the child, but also the basic facts which show why that ultimate conclusion is justified.” Sukin, 842 P.2d at 924 (quotation simplified). The court’s finding that Jazmin “has exhibited good parenting skills, is of good moral character, and emotionally stable” is inadequate for us to determine whether the court exceeded its discretion in assessing the abuse/neglect and moral character factors or how those factors impacted Child’s best interests. Likewise, the court’s expression of “concern[] about the alleged physical abuse between the parties during the marriage” tells us nothing about how or even if the court weighed the abuse allegations in its custody evaluation. Indeed, it is not clear to us that the court considered this factor at all in assessing which parent should be awarded custody, as it mentioned the factor only in the context of concluding that it would be “appropriate” for the exchanges of Child to occur at a police department safe zone. Without at least some discussion of the evidence the court relied on in assessing the factors and how the court related the factors to Child’s best interests, the court’s findings regarding the custody factors are inadequate. See, e.g.K.P.S. v. E.J.P., 2018 UT App 5, ¶¶ 30–42, 414 P.3d 933 (determining that the court’s factual findings were inadequate where it made factual conclusions but did not discuss the evidence underlying those conclusions and rejected the guardian ad litem’s recommendation without explanation); Bartlett v. Bartlett, 2015 UT App 2, ¶ 6, 342 P.3d 296 (rejecting the court’s conclusory finding that the mother was “better able and equipped to support and sustain a positive relationship between the children and their father” where the “court identified no subsidiary facts supporting this finding” and had, in fact, “admonished Mother for denying Father court-ordered access to the children” (quotation simplified)); Barnes, 857 P.2d at 261 (rejecting as inadequate the court’s finding that “[t]he Plaintiff’s level of commitment to her children during the course of this separation has exceeded that of the Defendant and that’s been established by their actions during the course of their separation” because “[t]he findings do not show whether the court considered the moral conduct or emotional stability of the parties and what evidence the court found determinative in deciding the best interests of the children”); Roberts v. Roberts, 835 P.2d 193, 196–97 (Utah Ct. App. 1992) (deeming inadequate findings that “Husband has physically abused Wife during the marriage” and that “both parties have participated in acts that bear on their moral character,” accompanied by a recitation of examples of each party’s bad behavior because the recitation did not give any “guidance regarding how those acts bear on the parties’ parenting abilities or affect the children’s best interests” (quotation simplified)); Cummings v. Cummings, 821 P.2d 472, 478–79 (Utah Ct. App. 1991) (reversing the district court’s custody determination based on its failure to make findings regarding evidence relating to important custody factors); Paryzek v. Paryzek, 776 P.2d 78, 83 (Utah Ct. App. 1989) (holding that it was an abuse of discretion for the court’s findings to “omit any reference” to a custody evaluation and evidence relating to the bond between father and son, the father’s status as primary caretaker pending trial, the fact that the child thrived while in the father’s care, and the son’s preference for living with his father).

¶25 Thus, we conclude that the district court exceeded its discretion by failing to include in its findings any discussion of the evidence relating to the abuse allegations against Jazmin, her alleged neglect of Child, and her moral character, as well as the effect that evidence had on its best-interest analysis. Accordingly, we vacate the district court’s custody and parent-time order and remand for the court to revisit that evidence and enter additional or supplemented findings, as necessary.

B. Deviation from Statutory Minimum Parent-Time Schedule

¶26 Joseph next argues that the district court committed reversible error by awarding him less than the minimum parent-time he is guaranteed by statute. Because we agree that the court’s custody award indeed creates a situation in which Joseph is guaranteed less than the statutory minimum, without explaining its reasoning in adequate factual findings, we conclude that this is an additional reason to vacate the court’s parent-time order.

¶27 In the event that the parents of a minor child litigating that child’s custody are unable to agree to a parent-time schedule, our legislature has codified a “minimum parent-time [schedule] to which the noncustodial parent and the child shall be entitled.” See Utah Code Ann. §§ 30-3-35(2), 30-3-35.5(3) (LexisNexis 2019 & Supp. 2021). In fashioning its parent-time order, the court may either “incorporate[] a parent-time schedule provided in Section 30-3-35 or 30-3-35.5; or . . . provide[] more or less parent-time” than outlined in those sections, but in either case “[t]he court shall enter the reasons underlying the court’s order for parent-time.” Id. § 30-3-34(4) (Supp. 2021). The court’s reasoning must be outlined in adequate factual findings, which must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Lay v. Lay, 2018 UT App 137, ¶ 19, 427 P.3d 1221 (quotation simplified). Thus, the statutory minimum “provides [the court with] a presumptive minimum, but the district court still retains discretion to award more [or less] time” to the noncustodial parent, so long as it identifies “the reasons underlying its order” in sufficiently detailed factual findings. See T.W. v. S.A., 2021 UT App 132, ¶ 30, 504 P.3d 163 (quotation simplified).

¶28 There is a separate section dealing with the minimum schedule for children who are under five years of age, see Utah Code Ann. § 30-3-35.5 (2019), and those who are between five and eighteen years of age, see id. § 30-3-35 (Supp. 2021). As Child was born in May 2017, she is still currently younger than five, so section 30-3-35.5 applies. Under that section, Joseph is entitled to “one weekday evening between 5:30 p.m. and 8:30 p.m.,” “alternative weekends . . . from 6 p.m. on Friday until 7 p.m. on Sunday,” certain holidays, and “two two-week periods, separated by at least four weeks, at the option of the noncustodial parent.” See id. § 30-3-35.5(3)(f) (2019).

¶29      Under the court’s findings and the divorce decree, Joseph receives parent-time “every Thursday overnight and every other weekend from Friday (after school) to Sunday evening at 6 p.m.,” and when it is Jazmin’s weekend, he returns Child to Jazmin “by Friday at noon following his Thursday overnight parent time.” Although Joseph correctly points out that the parent-time order requires him to return Child one hour earlier on Sundays than provided for in the statutory minimum schedule, Joseph ultimately receives more than the minimum parent-time required by statute while Child is under five, because he receives an additional weekday overnight, whereas the statute requires only a weekday evening visit. See id. Thus, for the time being, Joseph receives more than the statutory minimum.

¶30 But the situation changes when Child starts school. The district court ordered that once Child “commences Kindergarten,” Joseph’s parent-time “shall change[] to every other weekend from Friday (after school) to Sunday at 6 p.m., and a mid-week from after school until 7 p.m.” This schedule deviates from the statutory minimum, under which Joseph is entitled to “[a]lternating weekends . . . from 6 p.m. on Friday until Sunday at 7 p.m.,” and one weekday evening from either “5:30 p.m. until 8:30 p.m.” or, “at the election of the noncustodial parent, one weekday from the time the child’s school is regularly dismissed until 8:30 p.m.” Id. § 30-3-35(2)(a)(i), (2)(b)(i)(A) (Supp. 2021) (emphases added). Thus, under the court’s parent-time order, once Child begins kindergarten Joseph is required to return her to Jazmin one hour early on his weekends and one-and-a-half hours early during his weekday evenings.

¶31 As Joseph convincingly points out, while these discrepancies “may seem minor” to a casual observer, for “the non-custodial parent on a minimum visitation schedule, hours matter.” And, more importantly, the court did not explain—or even acknowledge—that it was departing from the statutory minimum. While section 30-3-35 is referenced in the findings of fact with respect to Joseph’s parent-time for holidays and summer vacation, the court made no other mention of the statutory minimum schedule.[5] As noted, when making its custody decision the court must give the “reasons underlying” its decision. See id. § 30-3-34(4); T.W., 2021 UT App 132, ¶ 30. The court did depart from the statutory minimum in this case, and it gave no reason for doing so in its findings.

¶32 As a result, we are prevented from conducting meaningful “appellate review to ensure that the district court’s discretionary determination was rationally based.” See Lay, 2018 UT App 137, ¶ 19 (quotation simplified). Accordingly, the findings in support of the district court’s parent-time order are insufficient, leaving us with no choice but to remand the matter for the court to adopt the statutory minimum schedule or otherwise explain its reasoning for departing from the minimum through adequate factual findings. See id.

II. Child Support

¶33 Joseph next challenges the district court’s child support determination, arguing that its determination of Jazmin’s income was entirely unsupported by the evidence and insufficiently explained. Because we agree that the court did not sufficiently explain how it reached the number it did in calculating Jazmin’s monthly income, we remand for entry of additional findings.

¶34 “A noncustodial parent’s child support obligation is calculated using each parent’s adjusted gross income.” Barrani v. Barrani, 2014 UT App 204, ¶ 11, 334 P.3d 994. Each parent’s “gross income” for purposes of child support “includes prospective income from any source, including earned and nonearned income sources which may include salaries, wages, . . . [and] rents.” Utah Code Ann. § 78B-12-203(1) (LexisNexis 2018). “Income from earned income sources is limited to the equivalent of one full-time 40-hour job.” Id. § 78B-12-203(2). “[C]hild support is appropriately calculated based on earnings at the time of trial,” but district courts also “have broad discretion to select an appropriate method” of calculating each parent’s income. Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998).

¶35      In this case, there were a number of potential bases for the court to assess Jazmin’s income. First, it could have accepted the declared full-time income in her financial declaration of $2,100, which she initially reaffirmed at trial. Second, it could have used her part-time substitute teaching income of approximately $813 per month combined with her in-kind income of $980 per month to reach a monthly income of $1,793. Third, it could have imputed her full-time income based on her substitute teaching salary of $75 per day for a total of $1,625 per month. There may, perhaps, have been other methods the court could have employed as well, had it adequately explained its reasoning.

¶36 Generally, “so long as the steps by which the ultimate conclusion on each factual issue was reached are apparent, a trial court may make findings, credibility determinations, or other assessments without detailing its justification for finding particular evidence more credible or persuasive than other evidence supporting a different outcome.” Shuman v. Shuman, 2017 UT App 192, ¶ 6, 406 P.3d 258 (quotation simplified). And had the court taken one of the approaches outlined above, or another approach for which its reasoning was apparent, we would be inclined to affirm the court’s decision.[6] However, here the district court’s finding that Jazmin earned “approximately $780 per month” from substitute teaching does not align with any evidence submitted at trial, nor, so far as we can tell, can it be extrapolated from that evidence.[7] As Joseph observes, this number “do[es] not appear to come from the documentary or testimonial evidence at all.” Jazmin testified that she earned $75 per day working as a substitute teacher but that she worked only two to three days a week. Using these numbers, she reached a “guesstimate” of her monthly income of $813 per month ($75 per day x 2.5 days per week x 52 weeks per year / 12 months). While Jazmin was admittedly unsure about the amount she would be able to earn, the $780 figure adopted by the court appears to not be supported by the evidence presented at trial. While we are reluctant to reverse a district court’s child support order on this basis considering the small discrepancy between the $813 and $780 figures, the fact remains that we are unable to identify the “steps by which the ultimate conclusion on [this] factual issue was reached.” See id. (quotation simplified).

¶37 In such situations, “without the benefit of the reasoning and additional findings by the [district] court,” we must remand the child support decision to the district court to detail its full reasoning, through adequate findings, for why it chose the income amount for Jazmin that it did. See Bell v. Bell, 2013 UT App 248, ¶ 19, 312 P.3d 951.

CONCLUSION

¶38 This appeal compels us to remand the case because the district court’s findings and conclusions were infirm in several respects. First, the court failed to address disputed evidence that was highly relevant to the court’s custody determination. Second, the court’s order awards Joseph less than the statutory minimum parent-time once Child starts kindergarten, without explaining why or recognizing that it did so. And third, the court’s findings regarding Jazmin’s income contain insufficient detail for us to adequately review its reasoning.


[1] Because the parties share the same surname, we follow our oft-used practice of referring to them by their first names, with no disrespect intended by the apparent informality.

[2] Other than mentioning that “both parent[s] can step up and be good parents and both parents in large part have been good parents,” the court did not announce a ruling from the bench at the conclusion of the trial. Instead, it asked both parties to prepare proposed findings of fact and conclusions of law and heard closing arguments at a subsequent hearing. Ultimately, with only a few minor alterations, the court adopted Jazmin’s findings of fact and conclusions of law in their entirety.

While we would not go so far as to say that it is inappropriate for the court to fully adopt one party’s proposed findings, before signing off the court should confirm that those findings conform to the evidence presented at trial and that the findings sufficiently explain the court’s reasoning for the decision. In this case, it appears that the court adopted Jazmin’s version of the evidence without confirmation of that evidence and without disclosing the steps by which the ultimate conclusion on each factual issue was reached.

[3] As part of his broader challenge to the district court’s child support determination, Joseph purports to include another argument: that the court erred in dividing the parties’ debts. However, Jazmin points out that while Joseph included this argument in his articulation of the issues on appeal, he “did not [substantively] address the debt issue in his brief.” Indeed, we find a dearth of any argument regarding the debt distribution in Joseph’s brief; accordingly, Joseph has failed to properly raise such an argument for our consideration.

[4] We are troubled by the manner in which the district court’s findings focused exclusively on Jazmin rather than comparing hers and Joseph’s relative character, skills, and abilities. See Woodward v. LaFranca, 2013 UT App 147, ¶¶ 22, 26–28, 305 P.3d 181 (explaining that a court’s findings must “compare the parenting skills, character, and abilities of both parents” and reversing a finding that the emotional stability factor weighed in favor of mother because it was based solely on the determination that mother was emotionally stable without any findings regarding father’s emotional stability; “the question for the court was not whether Mother was emotionally stable, but whether Mother was more emotionally stable than Father” (quotation simplified)), abrogated on other grounds by Zavala v. Zavala, 2016 UT App 6, 366 P.3d 422. We urge the court on remand to make the appropriate comparisons in revising its findings.

[5] Furthermore, section 30-3-35.5 is not referenced at all, which would have been the operative section from the time the decree was entered until Child turns five.

[6] While a finding that aligned with the various numbers presented at trial would have met the bare minimum threshold for sufficiency, we note that this case would substantially benefit from further analysis. First, the court did not address the inconsistencies in Jazmin’s trial testimony regarding her income. Jazmin first agreed that the $2,111 monthly income in her financial declaration was accurate but then went on to testify that she made only $75 per day substitute teaching and worked only two to three days per week. But the court did not address or explain the reasoning behind its resolution of this inconsistency. Second, Joseph presented evidence that Jazmin’s housing and utilities had been undervalued. The court’s decision included no discussion of the conflicting evidence regarding the value of Jazmin’s in-kind earnings or its assessment of that conflicting evidence. On remand, the court’s findings could benefit from a more thorough discussion of the evidence and explanation for its resolution of these conflicts.

[7] In Jazmin’s post-trial brief, she stated, without any supporting evidence, that she earned $72 per day, for a total of $780 per month. This appears to be the source of the court’s number. As assertions in the post-trial brief are not evidence, the court could not rely on this number to calculate child support.

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Hinds v Hinds-Holm – 2022 UT App 13 – child custody award factors

Hinds v Hinds-Holm – 2022 UT App 13

THE UTAH COURT OF APPEALS

BRADLEY HINDS,
Appellee,
v.
RACHEL HINDS-HOLM,
Appellant.

Opinion

No. 20200586-CA

Filed January 27, 2022

Third District Court, Salt Lake Department

The Honorable James T. Blanch

No. 174905091

Theodore R. Weckel, Attorney for Appellant
Jonathan G. Winn, Attorney for Appellee

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

MORTENSEN, Judge:

¶1        Bradley Hinds (Father) and Rachel Hinds-Holm (Mother) married and had a son (Child). After the parties divorced, the district court awarded custody of Child to Father. Mother challenges the court’s discretion in weighing the statutory custody factors and the court’s denial of her motion to continue the trial. We affirm.

BACKGROUND[1]

¶2        Father and Mother married in May 2015. Within a few weeks of the wedding, they experienced marital difficulties, and Mother left the family home. But after discovering Mother was pregnant, the parties reconciled, and Child was born in February 2016.

¶3        Father, who was in the military, was transferred to New Mexico, where Mother and Child joined him. For a period of about fifteen months, Mother and Father shared the parental duties of raising Child. However, Father contended that Mother interfered in his relationship with Child by not including him in medical decisions, not supporting his family’s relationship with Child, and giving contact with her mother (Grandmother) priority over his involvement with Child.

¶4        In June 2017, Father reported an incident of domestic violence. Father alleged “that he was physically assaulted by [Mother] and [Grandmother] resulting in a bruise on his arm, that he called the police, that base personnel intervened, and that the incident was investigated as domestic violence perpetrated by [Mother].” Mother claimed that “she was yelled at and verbally abused by [Father] during that episode.” While the report from the military labeled Mother as the perpetrator, it determined that the incident “did not meet the criteria for physical maltreatment and entry into” the military’s database. (Cleaned up.)

¶5 Mother then left New Mexico with Child to live with Grandmother in Utah. Thereafter, Father had difficulty reaching Mother and was unable to have contact with Child until September 2017, shortly after he filed for divorce in Salt Lake City, Utah. Under a temporary custody agreement reached by the parties and approved by the court, Mother was awarded sole physical custody, and the parties shared joint legal custody. Pursuant to this arrangement, “[t]he parties were ordered to cooperate with each other in terms of making decisions about the minor child, his health care, his education, and other decisions relating to the parties’ joint exercise of legal custody.”

¶6        However, on at least two occasions, Mother “declined to follow either something she and [Father] agreed to or something she was ordered to do by” the court commissioner. In December 2017, Father filed for an order to show cause in which he raised multiple issues regarding payment of certain expenses and Mother’s failure to follow court orders about joint custody arrangements.

¶7        In early April 2018, the parties attended mediation but were unable to reach an agreement. About a week later, Mother’s first attorney withdrew “as a result of [Mother’s] conduct that appear[ed] to be in bad faith.”

¶8        Mother hired a second attorney, and the parties attended a hearing on Father’s first motion for an order to show cause in May 2018. The court commissioner ruled in Father’s favor, ordering Mother to, among other things, involve Father in daycare and medical decisions regarding Child and to follow parent-time orders.

¶9        In September 2018, the commissioner ruled in Father’s favor on a second motion for an order to show cause, which also concerned matters of parent-time and shared expenses. In that order, the commissioner warned Mother about the consequences of future violations: “The Court admonishes [Mother] that if a third Order to Show Cause is raised before the Court for her inability to facilitate [Father’s] ordered parent-time, the Court will sentence [Mother] to five days of jail for every count of contempt for parent-time which is missed.” The commissioner also ordered Mother to respond to all discovery requests.

¶10      In September 2018, Mother’s second attorney withdrew as counsel. That attorney stated that she was “incredibly frustrated” with Mother and Mother was “acting in bad faith.”

¶11 Later that month, the court ordered that a custody evaluation be conducted by a licensed clinical social worker (Evaluator). The court ordered the parties to “cooperate as reasonably requested by” Evaluator, including participating in appointments and “[s]ubmission of any documents, names of collateral contacts, and other pertinent material for review during the first month of the evaluation process.” Mother did not comply with the evaluation order. Specifically, she (1) did not timely return the completed evaluation agreement; (2) did not timely provide the initial parenting questionnaire; (3) did not fully complete the parenting questionnaire when she did return it; (4) was dismissive concerning the information requested by Evaluator; (5) provided no helpful information by merely answering “yes” or “no” to Evaluator’s questions or by telling Evaluator, “Ask [Father], this is [Father’s] responsibility not mine”; (6) was slow in providing information; and (7) failed to provide Evaluator all the information requested.

¶12 In December 2018, Mother hired a third attorney for the limited purpose of “settling and preparing the final documents.”

¶13      In May 2019, as relevant here, the commissioner certified for trial the determination of physical custody, legal custody, and parent-time. The commissioner also heard Mother’s request to reopen discovery to appoint a rebuttal expert to Evaluator, but the commissioner “declined to rule on it and reserved the issue to be raised by [Mother] before” the judge. Moreover, the commissioner ordered Mother to “complete the outstanding discovery requests,” as the commissioner had ordered in September 2018, and “provide her responses” to Father within twenty-one days. Subsequently, the parties agreed to proceed by informal trial, see Utah R. Jud. Admin. 4-904, and the matter was referred back to the commissioner. A trial was scheduled for September 4, 2019.

¶14      In August 2019, Father filed a third motion for an order to show cause, alleging that Mother was not observing ordered parent-time and had failed to include Father in medical decisions. On August 28, Mother requested that the trial be continued, which the commissioner granted, resulting in a new trial date of November 5. In early September, Mother informed the commissioner that she no longer agreed to the informal trial, and the commissioner recommended that the parties contact the district court for a trial date. Mother’s third attorney withdrew in January 2020.

¶15 After the court scheduled a trial for March 9, Mother hired a fourth attorney on February 11. But he moved for permission to withdraw just fifteen days later, stating, “This withdrawal is done at the request of [Mother], her having knowledge of pending trial date on March 9, 2020. There has been a complete breakdown of attorney-client relationship which makes it impossible for counsel to be provided. [Mother] has indicated that she is planning to represent herself Pro Se at trial.” On February 27, the court entered an order granting the motion, stating that the pending trial of March 9 would not be continued.

¶16 On the morning of trial, Mother, proceeding pro se, informed the court that she had filed a motion to continue on February 26 but that the court clerks informed her that the motion had never been received. She then made an oral motion to continue so that she could retain counsel. The judge noted that Mother’s fourth attorney “represented . . . that [Mother] wanted him to withdraw, that it was at [Mother’s] request that he was withdrawing, . . . that [Mother] understood that the trial would not be continued, and that [Mother] understood that [she] would be representing [herself] at the trial.” Mother responded that when she asked him to withdraw, she thought she would still “be able to have [someone] that would be able to advocate and be there for” her. The court denied the motion.

¶17 At trial, as a threshold matter, the parties agreed that a joint custody arrangement “was not feasible” or in Child’s best interest. Thus, Mother and Father differed only as to which of them should receive sole legal and physical custody. Because the parties lived more than 1,000 miles apart and had an acrimonious relationship, the court determined that joint custody was, indeed, not feasible.

¶18 The court heard testimony from Father, Mother, and Evaluator. Evaluator provided extensive testimony concerning the best interest of Child in light of the statutory factors. Evaluator opined it was in Child’s best interest for Father to be awarded sole legal and physical custody of Child, with Mother receiving parent-time.

¶19 The court was “persuaded” (1) that Evaluator “did a thorough and careful evaluation that included an appropriate analysis of all the pertinent factors” and (2) “by a preponderance of the evidence that [Evaluator’s] expert opinions [were] in the best interests of the minor child in this case.”

¶20 In reaching the conclusion that it was in Child’s best interest that Father be awarded sole legal and physical custody, the court noted that it had not “delegate[d] decision-making responsibility” to Evaluator but had conducted “an independent analysis on the custody factors” set forth in Utah Code section 30-3-10(2) and applied “the evidence presented at trial” to arrive at a determination of Child’s best interest. The court then proceeded to address the custody factors.

¶21      The court found the following factors weighed in favor of Father:

·         Domestic violence, see Utah Code Ann. § 30-3-10(2)(a) (LexisNexis 2019): Despite the evidence being in dispute, the court determined that this factor weighed in favor of Father based on Father’s resulting injury, military documents listing Mother as the perpetrator, and Evaluator’s investigation into the incident.

·         Developmental needs of Child, see id. § 30-3-10(2)(b): Even though both parties unquestionably loved Child, the court reasoned that this factor weighed in favor of Father because evidence was presented that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” The court noted that there was no evidence that Father “would interfere” with Child’s relationship with Mother. The court concluded that it was “manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents” and that goal was more likely to be achieved if custody was awarded to Father than if it was awarded to Mother.

·         Parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c): Overall, this factor weighed “very strongly” in favor of Father. The court agreed with Evaluator that if Father “were awarded sole custody, he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.” The court also found that there had “been a frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.”

·         Wishes and concerns of Child, see id. § 30-3-10(2)(p): While Mother tried to portray in her testimony that Child did not like Father, the court expressed concern that any dislike Child had toward Father was “the product of [Mother] instilling negative feelings in the mind of [Child] against [Father].” And given the court’s impression that Mother was attempting to manipulate Child, it found that this factor militated in favor of Father.

·         Any other relevant factor, see id. § 30-3-10(2)(r): This factor tilted to Father, the court concluded, because if Father was “awarded sole legal and physical custody, he [would] likely cooperate to the extent necessary to ensure that [Mother had a] bond and relationship with [Child].” “But based on [Mother’s] pattern of behavior throughout this action,” the court found it was “more likely than not that if sole legal and physical custody were to be awarded to [Mother], she would not cooperate to support the parent-child relationship and bond between [Father] and [Child].” And because it was “in [Child’s] best interest to have a bond with both parents, and since joint custody [was] not feasible,” the court found that the best way to ensure Child’s best interests were protected was “by awarding [Father] sole legal and physical custody with [Mother] to enjoy parent-time.”

¶22      The court found the following factors weighed in favor of Mother:

·         Child’s interaction and relationship with extended family, see id. § 30-3-10(2)(l): This factor weighed in favor of Mother because Child had a “strong relationship” with Grandmother.

·         Parent who has been the primary caretaker, see id. § 30-3­10(2)(m): This factor weighed in favor of Mother because she had primary custody during temporary orders.

·         Child’s bond with parent, see id. § 30-3-10(2)(q): “This factor [did] not strongly militate for or against either parent” but “[t]o the extent that [Mother had] been the primary caretaker under the temporary orders, this factor would likely militate in her favor.”

¶23      The court concluded these factors favored neither party:

·         Past conduct and moral character of the parent, see id. § 30-3-10(2)(d): The court noted that while evidence of Mother’s prior criminal convictions was presented, those convictions had, according to Mother, been expunged, and Father had presented no evidence to the contrary. Stating that it would not consider expunged charges, the court determined this factor weighed in neither party’s favor.

·         Relinquishment of custody or parent-time, see id. § 30-3­10(2)(h).

·         Duration and depth of desire for custody or parent-time, see id. § 30-3-10(2)(i).

·         Religious compatibility with Child, see id. § 30-3-10(2)(j).

·         Parent’s financial responsibility, see id. § 30-3-10(2)(k).

·         Happiness of Child in previous parenting arrangements, see id. § 30-3-10(2)(n).

¶24      After weighing these factors, the court entered the divorce decree, awarding Father sole legal and physical custody and Mother parent-time as set forth by Utah Code section 30-3-37(6).

¶25      Two days after the trial, Mother’s fifth attorney entered a limited appearance to assist Mother with filing a rule 52 motion[2] to amend the findings of fact and conclusions of law and a rule 59 motion[3] for a new trial. The court denied both motions, ruling Mother raised nothing in them “that she could not have raised earlier” and that they were “impermissible motions to reconsider” lacking “substantive merit.” Mother appeals.

ISSUES AND STANDARDS OF REVIEW

¶26      Mother asserts that the district court erred in applying the statutory custody factors and Utah case law when it found that it was in the best interest of Child to award Father full custody. “We review custody determinations under an abuse of discretion standard, giving the district court broad discretion to make custody awards.” Nebeker v. Orton, 2019 UT App 23, ¶ 15, 438 P.3d 1053 (cleaned up). And “we will not disturb the district court’s judgment unless we determine the district court has exceeded the scope of permitted discretion or has acted contrary to law.” Id. (cleaned up).

¶27      Mother also alleges that she was denied the right to a fair trial when the district court denied her motion to continue the trial. “We review a trial court’s decision on a motion to continue for an abuse of discretion.” Vaughan v. Romander, 2015 UT App 244, ¶ 6, 360 P.3d 761. “Indeed, courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused. Stated differently, a district court’s denial of a motion to continue is an abuse of its discretion only if its decision is clearly unreasonable and arbitrary.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up).

ANALYSIS

I. Custody Determination

¶28 Mother first challenges the award of full custody to Father, arguing that the district court misapplied Utah common law in weighing the factors.[4] We disagree with Mother.

¶29      In the context of determining custody, the court analyzes the child’s best interest through the factors found in Utah Code section 30-3-10(2) in light of the evidence. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. The “court’s discretion stems from the reality that in some cases the court must choose one custodian from two excellent parents, and its proximity to the evidence places it in a more advantaged position than an appellate court.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). Thus, a custody determination “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982).

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

¶31      Here, the district court clearly operated within the above framework in reaching its custody decision. The court found the evidence supported the conclusion that Father was better able to meet the developmental needs of Child. See Utah Code Ann. § 30-3-10(2)(b) (LexisNexis 2019). Specifically, the court focused its attention on each parent’s relative ability to co-parent Child. It determined that persuasive evidence was presented to show that Mother was “not interested in [Child] having an emotional father-son attachment to [Father], and to [the] contrary [had] taken steps to prevent or interfere with such an attachment.” As evidence of this tendency, the court pointed to Mother’s testimony and closing arguments:

[Mother] went out of her way several times to tell the Court that [Child] did not like to be around [Father], and that [Child] would act up when it was time to transition to [Father]. It was clear from [Mother’s] testimony that she believed it was an appropriate response to such perceptions to interfere with [Father’s] access to [Child], including interfering with his parent time, and that she . . .

believed such interference was appropriate even in the face of court orders if her perception as [Child’s] mother was that . . . she should keep him from [Father].

¶32 The court also noted that Mother regularly referred to Father by his first name when speaking about him to Child rather than referring to him as Child’s father. The court concluded that “[i]t was evident” that Mother’s testimony “was an effort to suggest that this four-year-old child had a preference for her over [Father].” In addition, the court noted that there was “ample evidence” that Mother had “interfered significantly” in Child’s relationship with Father by “a pattern of misbehavior, violating the orders of the court, and not cooperating with the custody evaluation.” In contrast, the court found “there was no evidence” that Father “would interfere” with Child’s relationship with Mother.

¶33      The court observed that if Mother was truly “looking out for the emotional needs” of Child, she “would make efforts to ensure [Child had] a strong emotional bond and parent-child relationship with both parents.” Based on this evidence, the court concluded,

[T]here is a strong reason to believe [Child] can have an appropriate parent-child relationship with [Mother] if custody of [Child] is awarded to [Father]. But there is an equally strong reason to believe that [Mother] will prevent [Child] from having any such relationship with [Father] if custody is awarded to [Mother]. This is apparent from the pattern of intransigence and noncompliance with Court orders, particularly regarding parent time, that [Mother] has demonstrated during the pendency of this action. It is manifestly in [Child’s] best interests to have an emotional bond and supportive parent-child relationship with both parents, and that goal is more likely to be achieved if custody is awarded to [Father] than if custody is awarded to [Mother].

¶34 With regard to each parent’s capacity and willingness to function as a parent, see id. § 30-3-10(2)(c), the court concluded that this factor overall weighed “very strongly” in favor of Father. As evidence, the court cited the “frustrating pattern throughout the pendency of this action of [Mother] agreeing to do things, or being ordered to do things, and then almost immediately refusing to follow through with agreements she made or Court orders she was given.” This pattern led the court to not being “persuaded that [Mother] would cooperate with [Father] having a parent-child relationship with [Child].” Thus, the court concluded that it was in Child’s best interest for Father to have sole custody because “he would cooperate better in terms of facilitating parent-time with [Mother] than she would in facilitating parent-time with him.”

¶35 One overarching concern of the court in weighing the factors was that it was in the best interest of Child “to live in a situation that maximizes the probability that he will maintain a strong bond and a productive and healthy relationship with both parents.” And “[b]ased on the evidence that was presented at trial,” the court found that if Father was awarded sole legal and physical custody, he would “likely cooperate to the extent necessary to ensure” Mother would have a bond and relationship with Child. But the same could not be said if Mother was awarded sole custody. On the contrary, based on her pattern of behavior, the court found it “more likely than not” that she would not cooperate in fostering a parent-child relationship and bond between Father and Child.

¶36 The court in this case “had to choose between two good parents,” but one of those parents—Mother—had consistently

manifested behavior that suggested she would not support or nurture Child’s relationship with Father. See Hudema v. Carpenter, 1999 UT App 290, ¶ 38, 989 P.2d 491; see also Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (“Often, when there are two equally suitable parents, the trial judge may be compelled to base a custody award upon observations of the parents in court, the reactions of the child to each parent, or other factors. A trial court need not find one parent inadequate before awarding custody to the other.”). So even though certain factors weighed slightly in Mother’s favor, see supra ¶ 22, “we must defer to the trial court’s broad discretion and affirm its conclusion that [Child’s] interests would best be served by awarding [Father] primary physical custody,” see Hudema, 1999 UT App 290, ¶ 38. In other words, the court did not abuse its discretion in concluding that it was in Child’s best interest to live with the parent who would most likely ensure that he would have a strong bond and healthy relationship with both parents and that this goal would best be achieved by awarding Father sole legal and physical custody.

II. Motion to Continue

¶37      Mother next argues that she was denied the right to a fair trial when the district court denied her motion to continue the trial.

¶38 “Courts have substantial discretion in deciding whether to grant continuances, and their decisions will not be overturned unless that discretion has been clearly abused.” Clarke v. Clarke, 2012 UT App 328, ¶ 19, 292 P.3d 76 (cleaned up). Stated another way, “we will conclude that a trial court has abused that discretion only if the decision to grant or deny a continuance is clearly unreasonable and arbitrary.” Vaughan v. Romander, 2015 UT App 244, ¶ 10, 360 P.3d 761 (cleaned up).

¶39 Mother has not shown that the district court abused its discretion in denying her motion to continue. In no way did the court act unreasonably or arbitrarily in coming to its decision. In Layton City v. Longcrier, 943 P.2d 655 (Utah Ct. App. 1997), this court adopted a five-prong test to determine whether a district court acted reasonably in denying a motion to continue: (1) “whether other continuances have been requested and granted”; (2) “the balanced convenience or inconvenience to the litigants, witnesses, counsel, and the court”; (3) “whether the requested delay is for legitimate reasons, or whether it is dilatory, purposeful, or contrived”; (4) “whether the [requesting party] contributed to the circumstance which gives rise to the request for a continuance”; and (5) “whether denying the continuance will result in identifiable prejudice to [the requesting party’s] case, and if so, whether this prejudice is of a material or substantial nature.” Id. at 659. We address each factor in turn.

¶40 First, Mother had already received one continuance and one extended period of time following her revocation of consent to an informal trial. While the transitory time between the second scheduled informal trial in November and the March trial date did not result from an express continuance, as a functional matter, granting this motion would have effectually resulted in a third continuance; so the first factor supports a determination that the court acted reasonably in denying the motion.

¶41 Second, granting the motion, which was made on the morning of the trial, would have resulted in significant inconvenience. Father had taken time off work and traveled from New Mexico to be present at trial. Evaluator was also present, and Father had paid her for her time. Mother had also been notified of the trial date and was present in court. So apart from her lack of counsel, she faced no inconvenience in proceeding—other than her desire not to.

¶42 Third, Mother had displayed a pattern of dilatory behavior throughout the proceedings, and the court could have reasonably concluded that her request for a continuance was yet another manifestation of this tendency.

¶43 Fourth, Mother’s action of firing her fourth attorney constituted the very circumstance that gave rise to the putative reason (namely, to hire another attorney) for requesting the third continuance.

¶44 Fifth, and most importantly, Mother was not prejudiced by the denial of the motion. Indeed, the court noted that Mother

was well prepared and represented herself quite effectively at trial, despite not ultimately convincing the court to rule in her favor. She had done research into relevant legal and factual issues. She represented herself tenaciously while still following the procedural rules set forth by the court. She cross-examined witnesses, testified, and presented arguments effectively. . . . Overall, the court’s impression of [Mother’s] performance at trial was that she had successfully deployed evidence and argument to present her strongest possible case to the court, albeit not a case that ultimately prevailed. In light of this, and considering that [Mother’s] inability to present an expert witness at trial was due to decisions by [her] prior counsel not to designate an expert and not due to the court’s refusal to grant a continuance, the court [was] hard-pressed to conclude that counsel could have secured a better result for [Mother] at trial than she secured for herself.

Thus, this final factor also supports the conclusion that the district court acted reasonably in denying the motion. See State v. Wallace, 2002 UT App 295, ¶ 37, 55 P.3d 1147 (“Unless a defendant shows that denial of the continuance had a material [e]ffect on the outcome of the trial, thereby demonstrating prejudice, the trial court’s decision would not constitute an abuse of discretion.”).

¶45 Mother had already effectively received two continuances, and granting a third would have disproportionately inconvenienced Father. Moreover, Mother had a pattern of delaying the custody proceedings and had occasioned the need for a third continuance by her own actions. Finally, there is no evidence that Mother would have received a more favorable outcome had the continuance been granted. Under these circumstances, we conclude that the district court did not abuse its discretion in denying Mother’s motion on the morning of the trial.

III. Attorney Fees on Appeal

¶46 Father requests attorney fees incurred pursuant to this appeal. “Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal.” Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 11, 446 P.3d 84 (cleaned up). But that is not the case here. The court awarded attorney fees below relative to the two orders to show cause, which are not the subject of this appeal. Because Father prevails on separate issues on appeal (namely, the award of custody and the denial of Mother’s motion to continue), he is not entitled to fees incurred on appeal.

CONCLUSION

¶47 We see no abuse of discretion in the district court’s weighing of the statutory factors in reaching its decision to award custody to Father. We also conclude that the court did not abuse its discretion in denying Mother’s motion to continue. And we decline to award Father attorney fees incurred on appeal. Affirmed.

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

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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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