Roberts v. Roberts , 768 Utah Adv. Rep. 12 ( 2014 )

2014 UT App 211_________________________________________________________
THE UTAH COURT OF APPEALS
KRISTEN A. ROBERTS,
Petitioner and Appellee,
v.
TY H. ROBERTS,
Respondent and Appellant.
Opinion
No. 20120302-CA
Filed September 5, 2014
Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 094701054
Brad C. Smith and Ryan B. Wilkinson, Attorneys
for Appellant
Brittany R. Brown, Attorney for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE RUSSELL W. BENCH concurred.1
ROTH, Judge:
¶1 Ty H. Roberts (Husband) appeals the trial court’s ruling
ordering him to pay Kristen A. Roberts (Wife) alimony and
attorney fees, denying his request for reimbursement of child
care expenses, allocating to both parties the tax liability of Wife’s
business, and refusing to grant him a fault-based divorce or take
1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
Roberts v. Roberts
into account Wife’s extramarital affair in its alimony calculation.
We affirm in part, reverse in part, and remand to the trial court.
BACKGROUND
¶2 Wife and Husband were married in September 1989 and
have four children. The couple separated in June 2009 after Wife
admitted to an extramarital affair. Wife filed a petition for
divorce one month later, citing irreconcilable differences.
Husband filed an answer and counter-petition seeking a divorce
for ‚*i+rreconcilable differences,‛ or alternatively, ‚on the basis
of *Wife+’s adultery.‛
¶3 Both parties worked outside the home throughout their
marriage. Husband worked at a bank, earning a gross monthly
income of $6,886. Wife worked as a sales representative at a
fashion retailer for thirteen years, but at the time of the divorce,
she had opened a deli franchise. The business struggled, and
Wife drew a monthly salary of $1,000 until about June 2010 and
$2,000 thereafter.
¶4 The court issued a temporary order in September 2009
that awarded the parties joint physical custody of their three
younger children but gave primary physical custody of their
oldest son to Husband. Because Husband had primary custody
of the couple’s oldest child, Wife was ordered to pay Husband
$121.23 per month in child support, and she was also required to
pay $146.25 per month for her share of the children’s medical
and dental insurance as well as half of any out-of-pocket medical
costs the children incurred. In making this determination, the
court imputed to Wife a monthly income of $1,256 (minimum
wage). In a second temporary order issued three months later,
the court ordered Husband to pay $1,500 per month in
temporary spousal support, but it later reduced that amount to
$1,281.
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¶5 The couple’s oldest son turned eighteen in June 2010, and
the parties agreed that the temporary child support obligations
should be revisited as a result. Husband argued that the court
should impute to Wife a different income when making this new
calculation because he believed Wife had significantly
understated her earnings from the deli business and was
actually taking home as much as $3,500 per month. The child
support issue was ultimately reserved for trial. After considering
the evidence presented at the February 2011 trial, the court
imputed to Wife a gross monthly income much higher than
minimum wage but retroactively modified the temporary child
support from the time of the oldest son’s majority through
February 2011 using the same minimum-wage income it had
imputed to Wife in the second temporary order. In this regard
the court explained only that ‚for the purposes of the temporary
award it is reasonable to use the same incomes of the parties
used to calculate child support in the Temporary Order.‛ As a
result, the court awarded Wife back child support in the amount
of $518 per month from July 2010 through February 2011. The
court denied Husband’s request to retroactively modify the
award of unpaid child support using Wife’s higher imputed
income from trial.
¶6 The court ultimately entered a decree of divorce in
February 2012, granting Wife a divorce from Husband based on
irreconcilable differences. The parties were awarded joint
physical and legal custody of their three minor children. To
calculate Husband’s alimony and child support obligations, the
court imputed to Wife a gross monthly income of $3,000 and
found that she had $4,000 in reasonable monthly expenses.
Based on Husband’s gross monthly income of $6,886 and
monthly expenses of $4,000, the court awarded Wife $1,281 per
month in permanent alimony, $381 per month in child support,
and $5,000 in attorney fees. Wife was awarded her deli business
with its debt, but the court ordered that both ‚parties shall be
equally liable‛ for any tax liability that arose from the business
for any year in which they had filed a joint tax return. The court
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also denied Husband’s request for reimbursement for medical
expenses of the children that he claimed Wife had failed to pay
between July 2009 and February 2011.
ISSUES AND STANDARDS OF REVIEW
¶7 Husband raises a number of issues on appeal. First, he
challenges the trial court’s decisions awarding alimony, refusing
to retroactively modify the temporary child support order, and
granting Wife’s request for attorney fees. Because trial courts
have broad discretion to award alimony, child support, and
attorney fees, we will not disturb such decisions absent an abuse
of discretion. Connell v. Connell, 2010 UT App 139, ¶¶ 5–7, 233
P.3d 836. That means that ‚as long as the court exercise*d+ its
discretion within the bounds and under the standards we have
set and has supported its decision with adequate findings and
conclusions,‛ we will not substitute our judgment for the trial
court’s. Id. ¶ 5 (citation and internal quotation marks omitted).
¶8 Second, Husband argues that the court improperly denied
his request to offset temporary child support and alimony
payments with medical expenses he incurred for his children
during the divorce proceedings. He also contends that the court
erred in awarding Wife her deli business but dividing equally
between the parties the tax consequences the business incurred
during their marriage. ‚Trial courts have considerable discretion
in determining the financial interests of divorced parties,‛ so we
will not disturb either decision unless the trial court abused its
discretion. Bingham v. Bingham, 872 P.2d 1065, 1067 (Utah Ct.
App. 1994) (citation and internal quotation marks omitted).
¶9 Third, Husband argues that the trial court failed to take
into account Wife’s extramarital affair when it calculated
alimony and refused to grant Husband’s counter-petition for a
fault-based divorce. Husband further urges us to overrule Mark
v. Mark, 2009 UT App 374, 223 P.3d 476, a case the trial court
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relied on that instructs courts to ignore evidence of fault when
making alimony determinations. See id. ¶ 20. ‚We review the
trial court’s interpretations of law for correctness.‛ Trubetzkoy v.
Trubetzkoy, 2009 UT App 77, ¶ 10, 205 P.3d 891. Husband’s final
issue relates to Husband’s claim that his alimony obligation
ought to be terminated. Specifically, he challenges the court’s
determination that Wife was not cohabiting with a male friend
(Friend). ‚While we defer to the trial court’s factual findings
unless they are shown to be clearly erroneous, we review its
ultimate conclusion [of cohabitation] for correctness.‛ Levin v.
Carlton-Levin, 2014 UT App 3, ¶ 9, 318 P.3d 1177 (citation and
internal quotation marks omitted).
ANALYSIS
I. Inadequate Findings of Fact and Conclusions of Law
¶10 A trial court’s findings of fact and conclusions of law
must be ‚sufficiently detailed‛ to allow ‚a reviewing court to
ensure that the trial court’s discretionary determination was
rationally based upon‛ the relevant facts and controlling legal
principles. Connell, 2010 UT App 139, ¶ 12 (citation and internal
quotation marks omitted). We have stated that a court’s findings
and conclusions must be sufficiently ‚detailed,‛ including
‚enough subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was reached.‛ Id.(citation and internal quotation marks omitted). In practice, this
does not mean that trial courts must analyze each issue in the
same depth as an appellate opinion; rather, the court’s findings
and conclusions must contain just enough detail to allow a
reviewing court ‚to ascertain the basis of the trial court’s
decision.‛ Allen v. Ciokewicz, 2012 UT App 162, ¶ 42, 280 P.3d 425(citation and internal quotation marks omitted). A trial court
decision with deficient findings prevents appellate courts ‚from
effectively reviewing the trial court’s decision,‛ and it may
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therefore be ‚remand*ed+ for the entry of more-detailed
findings.‛ Id. (citations and internal quotation marks omitted).
¶11 We conclude that the trial court’s factual findings and
conclusions are deficient in a number of areas, and we remand
for the entry of additional findings of fact on the following
issues: (1) the amount and duration of alimony awarded to Wife,
(2) the denial of Husband’s motion to modify the temporary
child support award, and (3) the decision to award Wife attorney
fees. We express no opinion on the merits of the underlying
issues and emphasize that each of these questions is within a
trial court’s broad discretion. Our decision to remand is not
meant to point the court to any particular result; rather, on
remand the court ought to provide a fuller explanation for
whatever conclusion it reaches.
A. Alimony
¶12 Trial courts consider a number of factors when
determining the amount and duration of alimony, focusing
principally on the three Jones factors: ‚(1) the financial condition
and needs of the recipient spouse, (2) the ability of the recipient
spouse to produce sufficient income, and (3) the ability of the
payor spouse to provide support.‛ Richardson v. Richardson, 2008
UT 57, ¶ 6, 201 P.3d 942 (citing Jones v. Jones, 700 P.2d 1072, 1075
(Utah 1985)). Other relevant considerations include ‚the length
of the marriage‛ and ‚whether the recipient spouse has custody
of minor children requiring support.‛ Utah Code Ann. § 30-3-
5(8)(a)(iv), (v) (LexisNexis 2007).2 As discussed, a trial court’s
analysis of each factor must contain factual findings with
enough detail to permit meaningful appellate review of its
decision.
2. Except where we have noted otherwise, we cite the 2007
version of the Utah Code because that version was in effect at
the time the parties filed for divorce.
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¶13 The trial court found that Wife had $4,000 in monthly
expenses, and it imputed to her a monthly income of $3,000. Her
monthly shortfall was accordingly $1,000. Husband argues that
Wife’s alimony award of $1,281 is excessive for two reasons.
First, he cites precedent indicating, in his words, that ‚a recipient
spouse’s demonstrated need . . . must constitute the maximum
permissible alimony award‛ and argues that the trial court
awarded Wife $281 per month beyond her demonstrated
financial need. (Citation and internal quotation marks omitted.)
Second, he contends that because Wife claimed expenses for the
children as personal expenses in her financial declaration, the
court should have treated Wife’s $381 child support award as
income in calculating alimony. Husband maintains that these
oversights resulted in an alimony award ‚more than $600 per
month more than Wife’s determined monthly need.‛ In other
words, because the court found that Wife had $1,000 in unmet
monthly needs—including child expenses—Husband argues
that the court abused its discretion when it awarded Wife $1,662
in support payments ($381 in child support plus $1,281 in
alimony). Husband also contends that the court erred when it
‚awarded Wife alimony for the maximum possible duration, 23
years,‛ instead of ordering a shorter period of rehabilitative
alimony. We consider each issue in turn.
1. The Amount of Alimony
¶14 The 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.‛ Richardson, 2008 UT 57, ¶ 7 (citations
omitted). The core function of alimony is therefore economic—it
should not operate as a penalty against the payor nor a reward
to the recipient. Myers v. Myers, 2010 UT App 74, ¶ 12, 231 P.3d
815. For that reason, ‚regardless of the payor spouse’s ability to
pay more, the [recipient] spouse’s demonstrated need must . . .
constitute the maximum permissible alimony award.‛ Jensen v.
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Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (alteration and
omission in original) (citation and internal quotation marks
omitted). We conclude that although the trial court made
detailed findings of fact on Wife’s needs, her income, and
Husband’s ability to provide support, the court did not
adequately explain why it calculated Husband’s alimony and
child support obligations in a manner that appears to have
exceeded Wife’s demonstrated monthly need of $1,000.
¶15 The trial court made detailed findings on each of the Jones
factors. The court found that Husband and Wife were both
employed throughout the duration of their marriage. Wife
worked as a sales representative for a fashion retailer for thirteen
years before opening her deli business in 2004. As a sales
representative, Wife earned more than $3,600 a month, but her
monthly draw from the deli business was just $1,000 between
2004 and 2010. After that, Wife’s draw increased to $2,000. The
court evaluated expert testimony from each side on Wife’s
potential future income and imputed to Wife an annual income
of $36,000, or ‚a gross monthly income of $3,000.00.‛ The court
also found that Wife had reasonable monthly living expenses of
$4,000. With respect to Husband’s ability to provide support, the
court found that Husband has worked in banking since 1998 and
earns $6,886 per month. Husband testified that his monthly
living expenses were $6,500, but the court determined that he
had included in that amount expenses incurred for the parties’
adult son and Husband’s temporary alimony obligation. After
deducting these payments, the court found that Husband’s
monthly living expenses were $4,000.
¶16 The court determined that Wife’s ‚after-tax income‛ was
insufficient to meet her monthly needs and that an ‚alimony
award of $1,281.00 per month [was] . . . reasonable and proper‛
for ‚a term no longer than the term of the marriage of the
parties,‛ which was between twenty-two and twenty-three
years. The court also awarded Wife $381 per month in child
support. The court denied Husband’s post-trial request to
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modify the alimony award, noting that the award was ‚fair and
equitable‛ in light of ‚the tax implications‛ to both parties.
¶17 Husband argues that ‚the court failed to explain why or
how it reached its decision‛ to award Wife support payments in
excess of her demonstrated need, particularly in light of the child
expenses Wife listed in her financial declaration. We agree and
conclude that the trial court’s findings of fact are deficient in two
respects. First, the court did not explain why it declined to treat
the child support award as income in making its alimony
determination when it apparently considered the children’s
expenses as part of Wife’s need. While ‚*i+t is typically best
practice for trial courts to analyze alimony without factoring in
child support obligations,‛ we have held that treating child
support payments as the recipient spouse’s income is
permissible where the recipient ‚combine*s+ her expenses with
those of the children‛ in her financial declaration. Dobson v.
Dobson, 2012 UT App 373, ¶ 11, 294 P.3d 591. Here, Wife’s $4,000
in monthly expenses included $200 for ‚Children’s education
expenses‛; $300 for ‚Children’s dance classes, costumes, *and+
other fees‛; and $246 for her share of the children’s medical and
dental expenses. It is unclear whether she also included the
children’s food and other necessities under those expense
categories. The court awarded Wife a total of $1,662 in monthly
support payments ($1,281 in alimony plus $381 in child support)
even though its findings demonstrated that Wife’s monthly
need—which might include some significant part of her
children’s expenses—was just $1,000. While that choice might
have been within the trial court’s discretion, see Connell v.
Connell, 2010 UT App 139, ¶¶ 5, 7, 233 P.3d 836, the court did not
explain why it did not include the child support payment as
income in its alimony determination when at least some of the
children’s expenses seem to have been factored into the alimony
calculation already.
¶18 Second, even if the trial court had adequately explained
its decision to exclude child support from Wife’s income, the
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court still awarded $1,281 per month in alimony even though
Wife’s demonstrated need seems to have been just $1,000. The
court’s justification for the $281 disparity was a simple reference
to ‚tax implications.‛ Presumably, the court believed that there
were tax consequences to one or both parties stemming from its
determinations of income and expenses that would leave Wife
with insufficient net income to meet her needs, even though the
gross income seemed adequate. But the court did not explain
either its reasoning or its calculation, and we are unable to
discern the basis for the court’s conclusion. Consequently, even
though the court carefully analyzed Husband’s ability to pay,
Wife’s needs, and Wife’s earning capacity, there are simply not
enough ‚subsidiary facts to disclose‛ how the court determined
that an alimony award in excess of Wife’s demonstrated need
was warranted. See Hall v. Hall, 858 P.2d 1018, 1021 (Utah Ct.
App. 1993); see also Bingham v. Bingham, 872 P.2d 1065, 1068
(Utah Ct. App. 1994) (remanding a divorce ‚case for
reassessment of the alimony award‛ because the trial court
‚awarded *the recipient spouse+ $701.76 per month more than
her projected financial requirements‛ without offering any
‚explanation for such a discrepancy‛). We therefore conclude
that the trial court did not make sufficient factual findings to
justify the amount of Wife’s alimony award, and we remand for
a reassessment of Husband’s alimony obligation.
2. Rehabilitative Alimony
¶19 Husband also contends that the ‚trial court incorrectly
awarded Wife alimony for the maximum possible duration, 23
years,‛ instead of rehabilitative alimony. Because the court did
not provide sufficient analysis of its alimony duration
determination, we are unable to appropriately address this issue
on appeal and so must remand for the trial court’s further
consideration.
¶20 As we have discussed, the purposes of alimony are ‚(1) to
get the parties as close as possible to the same standard of living
20120302-CA 10 2014 UT App 211Roberts v. Roberts
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.‛ Richardson v. Richardson, 2008 UT 57,
¶ 7, 201 P.3d 942 (citations omitted). Determining the proper
duration of alimony payments can be challenging when the
recipient spouse is underemployed or not working because the
recipient’s earning potential must be estimated and long-term
needs are therefore difficult to ascertain. Depending on the
circumstances, trial courts consider two different types of
alimony to deal with this uncertainty—either the more
traditional permanent alimony award for up to the length of the
marriage or rehabilitative alimony, which typically is for a
shorter period. ‚*T+he length of the marriage, the age of the
recipient spouse, and the employment history and employability
of the recipient spouse are relevant factors to consider in
determining whether an award of rehabilitative alimony, rather
than traditional alimony, is appropriate.‛ Boyer v. Boyer, 2011 UT
App 141, ¶ 17, 259 P.3d 1063 (alteration in original) (citation and
internal quotation marks omitted); see, e.g., Jones v. Jones, 700 P.2d
1072, 1076 (Utah 1985) (reversing an award for rehabilitative
alimony where the recipient spouse was ‚in her mid-50’s,
possesse[d] few marketable job skills, and ha[d] little hope of
retraining‛). Rehabilitative alimony can be appropriate when the
recipient spouse has the requisite education and work history to
eventually meet his or her own needs, and alimony functions to
‚‘close the gap between actual expenses and actual income to
enable the receiving spouse to’‛ become self-sufficient before
‚‘the [rehabilitative period] end[s].’‛ Boyer, 2011 UT App 141,
¶ 16 (quoting Mark v. Mark, 2009 UT App 374, ¶ 12, 223 P.3d
476). A trial court has broad discretion to fashion the alimony
award that is most appropriate to the particular circumstances
before it, but the court must explain its decision with adequate
findings of fact. See supra ¶ 10.
¶21 Here, Husband requested rehabilitative alimony during
closing argument, and there are circumstances in this case that
could weigh in favor of such an award. Wife was forty-three
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years old at the time of trial and had completed two years of
college. She was employed throughout the marriage, including
thirteen years as an award-winning sales associate at a large
retailer and then another seven years as a small business owner.
Although Wife’s deli business struggled, her employment
history demonstrated that she was a talented salesperson,
earning between $41,000 and $47,000 each of her last seven years
in retail sales. The court agreed with Wife that it could take
several years for her to rebuild her career in sales, and it
imputed to her an annual income of $36,000.
¶22 But the trial court’s findings of fact and conclusions of law
in this case do not address Husband’s request for rehabilitative
alimony, concluding simply that ‚*a+limony should be paid
commencing March 2011 and continuing each month thereafter
until . . . the expiration of a term no longer than the term of the
marriage of the parties.‛ As a consequence, the trial court’s
factual findings are insufficient to support a permanent alimony
award in the face of Husband’s request and evidence that might
support a rehabilitative award. See, e.g., Jensen v. Jensen, 2008 UT
App 392, ¶¶ 2, 10, 19, 20, 197 P.3d 117 (concluding that the trial
court did not abuse its discretion by awarding rehabilitative
alimony where the recipient spouse had an associate’s degree,
worked sporadically for four years during a sixteen-year
marriage, was not employed when the parties divorced, and had
an imputed income of $1,419 per month). Accordingly, we
remand for the trial court to reconsider the duration of its
alimony award. We reiterate the discretion afforded to the trial
court.
B. Child Support
¶23 Husband argues that the trial court abused its discretion
when it refused to retroactively modify the temporary child
support order. Before trial, the court entered a temporary order
requiring Wife to pay Husband ‚$121.23 per month‛ in child
support based on Wife’s then ‚imputed gross income . . . of
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$1,256.00 per month‛ and the fact that Husband had temporary
physical custody of the couple’s oldest son while the parties
shared joint physical custody of their other three children. Before
trial, the couple’s oldest son turned eighteen, and the parties
asked the court to recalculate child support. Husband urged the
court to use what he considered a more realistic assessment of
Wife’s income in making that calculation, but the issue was
ultimately reserved for trial. At trial, the court imputed to Wife a
monthly income of $3,000, but it denied Husband’s request to
retroactively modify Wife’s temporary child support obligation,
stating only that ‚for the purposes of the temporary award it is
reasonable to use the same incomes of the parties used to
calculate child support in the Temporary Order.‛
¶24 Wife maintains that there was no basis in the record to
retroactively modify the temporary child support award, and
she directs us to a variety of evidence that shows her actual
income was far below $3,000 while the temporary order was in
place. For example, Wife testified at trial that her deli business
operated at a loss, and the trial court found that Wife received a
$1,000 monthly salary from the deli until 2010 when her salary
increased to $2,000 per month. Wife maintains that ‚*t+he fact
that the trial court determined that [she] has the potential to earn
$3,000 per month is no indication that she was earning even
close to that amount during the time frame of 2009–2010‛ when
the temporary order was in place. That may be true, but because
the trial court’s factual findings are too terse to support that
conclusion, we conclude that its denial of Husband’s request to
retroactively modify the temporary order must be remanded for
further consideration and appropriate findings.
¶25 Courts have discretion to modify child support and
alimony awards retroactively. Wall v. Wall, 2007 UT App 61,
¶ 20, 157 P.3d 341; see also Utah Code Ann. § 78B-12-112(4)
(LexisNexis 2007). In McPherson v. McPherson, 2011 UT App 382,
265 P.3d 839, we reversed a trial court’s refusal to modify an
alimony award retroactively where the court calculated the
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husband’s support obligation based on a six-figure income that
had diminished drastically after he lost his job. Id. ¶¶ 2, 21–23.
We noted that even though ‚harsh awards or a disparity in
obligations can be justified by a finding of one or more
discretionary factors,‛ ‚the trial court . . . did not identify any . . .
explanation for the imposition of a temporary award beyond
Husband’s financial capability.‛ Id. ¶ 20. In this case, it is
possible, as Wife seems to suggest, that the court imputed a
monthly income of $1,256 to more accurately reflect Wife’s actual
earnings and earning capacity before trial but used $3,000 a
month in the divorce decree to reflect the forward-looking
nature of income imputation and to give her an incentive to
reach her earning capacity in the context of an award of
permanent alimony over a longer term. Wife is speculating,
however, because the court did not explain how it reached its
conclusion. Rather, it simply determined that using $1,256
instead of $3,000 was ‚reasonable.‛ Without any explanation or
subsidiary factual findings to justify this decision, the court’s
findings and conclusions are inadequate to support its decision,
and we therefore remand for the court to reconsider the issue.
See Connell v. Connell, 2010 UT App 139, ¶¶ 5, 7, 12, 233 P.3d 836.
C. Attorney Fees
¶26 Husband next challenges the trial court’s decision to
award Wife $5,000 in attorney fees. In the initial findings of fact
and conclusions of law, the court found that Wife incurred
$56,275 in attorney fees and that she had ‚borrowed over $33,000
from her parents to partially pay for the fees.‛ ‚Given the
relative financial circumstances the parties will have after the
divorce, and in applying the factors set forth in Rule 102, Utah
Rules of Civil Procedure,‛ the court concluded that ‚it is fair and
equitable that [Husband] pay [Wife] the amount of $25,000
toward her attorney fees and costs.‛ The court later reduced that
amount to $5,000 without further findings of fact or explanation.
Husband argues that the court’s factual findings are inadequate
to support its decision to award Wife attorney fees. We agree.
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¶27 In divorce cases, ‚*b+oth the decision to award attorney
fees and the amount of such fees are within the trial court’s
sound discretion.‛ Oliekan v. Oliekan, 2006 UT App 405, ¶ 30, 147
P.3d 464 (citation and internal quotation marks omitted).
Attorney fee awards, however, ‚must be based on evidence of
the financial need of the receiving spouse, the ability of the other
spouse to pay, and the reasonableness of the requested fees.
And, [f]ailure to consider these factors is grounds for reversal on
the fee issue.‛ Id. (alteration in original) (citations and internal
quotation marks omitted). For example, in Stonehocker v.
Stonehocker, 2008 UT App 11, 176 P.3d 476, we reversed an
attorney fee award where the court found that the wife ‚has the
need for attorney[] fees[,] . . . [the husband] has the ability to
pay,‛ and ‚the attorney[] fees were reasonable.‛ Id. ¶ 51 (first
and last alteration in original) (internal quotation marks and
citation omitted). We noted that even though the court
‚address*ed+ the parties’ annual income and monthly expenses‛
in its alimony determination and mentioned the factors pertinent
to an attorney fee award, the court made no ‚express factual
findings related to the award of attorney fees that include[d]
findings on the financial need of the receiving spouse, the ability
of the other spouse to pay, and the reasonableness of the
requested fees.‛ Id. ¶¶ 50–51 (citation and internal quotation
marks omitted).
¶28 Wife maintains that the court’s detailed findings of fact
regarding the parties’ incomes, expenses, and assets to
determine alimony and divide marital property are enough to
support the attorney fee award. But even if ‚there are facts in
other sections of the findings and conclusions that could support
*an attorney fee+ award,‛ failure to enter specific factual findings
on each of the pertinent factors is reversible error. See id. ¶ 51.
Here, the trial court indicated that Wife had incurred more than
$50,000 in attorney fees and had ‚borrowed over $33,000 from
her parents to partially pay for the fees.‛ But other than a
passing reference to the parties’ ‚relative financial
circumstances,‛ the court did not make any specific findings on
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the reasonableness of the award, Husband’s ability to pay, or
Wife’s needs.3 Consequently, we conclude that the court’s
findings of fact are insufficient to support its conclusion that an
attorney fee award was warranted because regardless of the
ultimate propriety of the award, ‚it is not apparent from the
record before us that the court followed the appropriate
analytical path in reaching its conclusion.‛ See Allen v. Allen,
2014 UT App 27, ¶ 28, 319 P.3d 770; see also Willey v. Willey, 951
P.2d 226, 230 (Utah 1997) (‚Without adequate findings of fact,
there can be no meaningful appellate review.‛).
D. Summary
¶29 In summary, we conclude that the trial court’s findings of
fact are insufficiently detailed to permit meaningful appellate
review of the amount of alimony awarded to Wife. We also
conclude that in light of Husband’s request for rehabilitative
alimony, the court should have more fully explained its decision
to award permanent alimony for the length of the marriage.
Finally, we conclude that the court did not adequately explain its
decisions awarding Wife attorney fees and denying Husband’s
request to retroactively modify his child support obligation.
Accordingly, we remand for the court to reconsider these issues
and enter additional findings of fact. In doing so, we reiterate
that our decision should not be read to require the court to reach
any particular result on the merits. Rather, we leave to the trial
court the task of resolving each issue with supporting findings of
fact that provide a fuller explanation for whatever conclusion it
determines is most appropriate. See McPherson, 2013 UT App
302, ¶ 8 (noting that comments on the trial court’s estimation of
3. Nor did the court offer any explanation for its decision to
decrease Wife’s award from $25,000 to $5,000. Although Wife
has not appealed that decision, we mention it simply because it
underscores the difficulty of tracing the factual and legal path to
the court’s ultimate attorney fee award.
20120302-CA 16 2014 UT App 211Roberts v. Roberts
the husband’s income before remanding for additional findings
of fact ‚were intended to guide and focus the trial court’s
consideration on remand on an issue we conclude had not been
adequately addressed,‛ not ‚to superimpose any particular
findings of fact, limit the sound exercise of the trial court’s
discretion, or dictate any particular result‛).
II. Medical Expenses and the Tax Liability of Wife’s Business
¶30 Husband next argues that the trial court erred when it
denied his request to offset unpaid temporary alimony payments
with medical and dental expenses he incurred for the children
during the period of temporary support. He also asserts that the
court should not have divided the tax obligations of Wife’s deli
business equally between the parties while awarding ownership
of the business solely to Wife. We decline to disturb either
decision because Husband has not met his burden of persuasion
on appeal.
A. Medical and Dental Expenses
¶31 The trial court entered temporary orders in September
and December 2009 that required Husband to pay Wife
temporary support and ordered each party to pay ‚one-half of
any child’s deductible, co-pay or non-covered amounts for . . .
essential medical or dental services or prescriptions.‛ Husband
asserts that even after he made repeated ‚timely requests for
reimbursement from Wife‛ for her portion of the children’s
medical expenses, she never paid her half. According to
Husband, in ‚August and October 2010, after *Wife’s+ repeated
failure to reimburse [him], [he] offset these amounts against
alimony and child support payments he owed to Wife.‛
¶32 The trial court found that Husband improperly offset
these expenses from his alimony payments and denied his
request for reimbursement. The court noted that Husband
included in the amounts he offset not just medical expenses, but
20120302-CA 17 2014 UT App 211Roberts v. Roberts
also ‚expenses relative to school fees, extracurricular activity
costs, clothing, and auto expenses for the children,‛ which were
not the subject of either of the temporary orders. The court also
noted that Husband did not support the other expenses he
claimed with ‚receipts verifying costs incurred,‛ so there was
‚insufficient evidence to support an award to *Husband+ for
unpaid child-related expenses.‛
¶33 On appeal, Husband does not point us to any evidence
that calls the court’s reasoning into question, and he cites no
controlling case law or statute that requires a different result.
Rather, Husband merely cites portions of his trial testimony
describing the expenses that the trial court ultimately found
were unsupported by the evidence. An appellant has the burden
of persuasion on appeal and must ‚point out the perceived
errors of the lower court‛ and provide ‚an argument containing
the contentions and reasons . . . with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.‛ Allen v. Friel, 2008 UT 56, ¶¶ 7, 10, 194
P.3d 903 (first omission in original) (citation and internal
quotation marks omitted); see also Utah R. App. P. 24(a)(9).
Without more, Husband has not met his burden of persuasion,
and we therefore decline to disturb the trial court’s decision.
B. Tax Consequences of Wife’s Business
¶34 For similar reasons, we also decline to disturb the trial
court’s decision to divide the tax consequences of Wife’s
business equally between the parties. Wife testified that she
opened a deli business in 2004 and operated it at a loss each year
from 2007 to 2009. The trial court found that the business had
‚no value‛ based on the substantial debt it had accumulated.
The court then awarded ‚the deli business, together with all *its+
debt obligations‛ to Wife, but it also ordered that ‚the parties be
equally liable for any tax, penalty or interest assessed‛ for any
tax year in which they filed a joint income tax return. Husband
asked the court to modify its order to insulate him from any tax
20120302-CA 18 2014 UT App 211Roberts v. Roberts
liability arising from Wife’s business, but the court declined to
do so. It explained that because ‚there were mutual tax benefits
derived by the parties during the marriage, any tax liability
should also flow to both parties.‛ Presumably, the business’s
losses enabled the couple to reduce their taxable income each
year in which they filed a joint return, so the court determined
that Husband, having already enjoyed tax benefits from the
business, should also share any financial pain that a subsequent
audit might impose.
¶35 Husband disagrees and argues that it is inequitable for
him to be ‚potentially liable for business-related taxes on a
business in which he was never involved, had no management
or other authority, and which Wife has admitted has substantial
potential tax liabilities.‛ ‚Under the facts of this case,‛ Husband
asserts, ‚the trial court abused its discretion in dividing the tax
obligation between the parties, but awarding the business to
Wife alone.‛ Husband, however, has not carried his burden of
persuasion on appeal.
¶36 ‚In a divorce proceeding, it is well established that the
trial court is permitted considerable discretion in adjusting the
financial and property interests of the parties, and its actions are
entitled to a presumption of validity.‛ Savage v. Savage, 658 P.2d
1201, 1203 (Utah 1983). Accordingly, we will not disturb a
decision adjusting the financial interests of the parties in a
divorce action unless the decision ‚works such a manifest
injustice or inequity as to indicate a clear abuse of discretion.‛ Id.(emphasis, citation, and internal quotation marks omitted). Here,
Husband offers little analysis demonstrating that the court’s
decision to divide the business’s tax liability between the parties
was an abuse of discretion. Rather, he simply asserts that the
court’s ruling was unfair because Wife mismanaged the
business, ‚kept no accounting records,‛ ‚used business cash for
personal expenses, and therefore, she could not vouch for the
accuracy of business tax matters.‛ But Husband does not point
to any evidence in the record to support those assertions, nor
20120302-CA 19 2014 UT App 211Roberts v. Roberts
does he direct us to any authority that is inconsistent with the
trial court’s analysis. As a result, Husband has not carried his
burden of persuasion on appeal, and we will not disturb the trial
court’s decision. See Allen, 2008 UT 56, ¶¶ 7, 10.
III. Wife’s Conduct
¶37 Finally, Husband raises a variety of issues that are related
to Wife’s extramarital affair. First, he argues that the trial court
was obligated to grant his counter-petition for a fault-based
divorce because ‚*n+o showing whatsoever was made of
irreconcilability‛ and ‚it was only the fact of the adulterous
conduct that would provide any basis at all to conclude that the
marriage was irretrievably lost.‛ Second, he argues that the trial
court ignored Wife’s fault in determining the amount and
duration of alimony, and he urges us to overrule Mark v. Mark,
2009 UT App 374, 223 P.3d 476, a decision that instructed trial
courts to do just that until the legislature provided further
guidance about how fault should be considered. See id. ¶ 20; see
also Utah Code Ann. § 30-3-5(8)(b) (LexisNexis 2007) (providing
that courts ‚may consider the fault of the parties in determining
alimony‛ without defining fault). Finally, Husband argues that
the trial court erred when it concluded that Wife was not
cohabiting with Friend.
¶38 We conclude that the trial court did not err in failing to
grant Husband’s counter-petition for a fault-based divorce. We
also conclude that the trial court properly relied on Mark and did
not err in its determination that there was no cohabitation.
A. Husband’s Counter-petition
¶39 Wife filed a petition for divorce based on the parties’
persistent failure ‚to reconcile and resolve their differences.‛
Husband filed a counter-petition for divorce, alleging that
‚*i+rreconcilable differences have arisen between *Wife+ and
[Husband] which have caused and led to the irretrievable
20120302-CA 20 2014 UT App 211Roberts v. Roberts
breakdown of the marriage between the parties[,] rendering the
marriage unworkable and subject to dissolution.‛ He also
alleged an alternative ground for the divorce ‚on the basis of
*Wife’s+ adultery.‛ The trial court granted Wife’s petition for a
divorce based on irreconcilable differences, and in its findings of
fact, the court also noted that Wife ‚admits to adultery as an
additional ground for the divorce.‛ The final decree of divorce
did not address Husband’s alternative claim for a fault-based
divorce, concluding simply that Wife ‚is awarded a divorce
from‛ Husband.
¶40 Husband argues that even though ‚the trial court made
express findings establishing Husband’s right to judgment in his
favor on the fault basis of adultery,‛ the court nevertheless
‚refused to enter a judgment in his favor‛ contrary to rule 54 of
the Utah Rules of Civil Procedure. See generally Utah R. Civ. P.
54(c)(1) (‚*E+very final judgment shall grant the relief to which
the party in whose favor it is rendered is entitled . . . .‛). He
further asserts that there ‚was no evidentiary basis for a finding
of irreconcilable differences, but only for the fault basis of Wife’s
adultery.‛
¶41 Husband’s argument overlooks the fact that he admitted
there was a basis for a divorce based on irreconcilable
differences. ‚An admission of fact in a pleading is a judicial
admission and is normally conclusive on the party making it.‛
Baldwin v. Vantage Corp., 676 P.2d 413, 415 (Utah 1984). Unless
withdrawn or amended, admissions ‚have the effect of
withdrawing a fact from issue and dispensing wholly with the
need for proof of the fact.‛ Guidry v. Sheet Metal Workers Int’l
Ass’n, 10 F.3d 700, 716 (10th Cir. 1993) (citation and internal
quotation marks omitted), modified en banc on other grounds sub
nom. Guidry v. Sheet Metal Workers Nat’l Pension Fund, 39 F.3d
1078 (10th Cir. 1994). In his answer to Wife’s petition for divorce,
Husband admitted that the parties’ differences had ‚become
irreconcilable[,] making continuation of the marriage under the
circumstances impossible.‛ And in his counter-petition for
20120302-CA 21 2014 UT App 211Roberts v. Roberts
divorce, Husband requested a divorce based on an ‚irretrievable
breakdown of the marriage‛ that he alleges arose from the
parties’ ‚*i+rreconcilable differences.‛ He alleged adultery only
as an alternative ground for the divorce. Consequently,
Husband’s admission by itself provides an evidentiary basis for
the court’s decision, and having granted a divorce on grounds
asserted by both parties, the court had no obligation to rule on
Husband’s claim for a fault-based divorce that he asserted only
in the alternative.4
B. Mark and the Relevance of Fault
¶42 The version of Utah Code section 30-3-5(8)(b) in effect
during the parties’ divorce proceedings allowed trial courts to
‚consider the fault of the parties in determining alimony.‛ See
Utah Code Ann. § 30-3-5(8)(b) (LexisNexis 2007). Five months
after Wife filed her petition for divorce, we issued a decision in
Mark instructing trial courts that it is ‚inappropriate to attach
any consequence to the consideration of fault when making an
alimony award.‛ 2009 UT App 374, ¶ 20. We noted that the
4. We note in passing that the trial court in this case granted Wife
a divorce based on irreconcilable differences, but it did not grant
Husband’s request for the same relief. While the practical effect
of the decree would likely be the same in any event, there is
precedent indicating that where both parties request a divorce
on the same grounds and the divorce is granted, each party is
entitled to a decree of divorce. See Haumont v. Haumont, 793 P.2d
421, 427 (Utah Ct. App. 1990) (concluding that ‚both parties
*were+ entitled to a decree of divorce‛ where the husband and
the wife had each sought a divorce based on irreconcilable
differences, but the trial court ‚improper*ly+‛ granted a divorce
only to the wife after finding that the husband ‚was at fault‛).
But on appeal, Husband has not requested that he be granted a
decree of divorce based on irreconcilable differences, so we do
not address the issue further.
20120302-CA 22 2014 UT App 211Roberts v. Roberts
legislature had ‚provided no definition of what, exactly,
constitutes fault,‛ leading to confusion over whether the statute
referred to fault-based grounds for divorce or bad behavior
unrelated to the divorce’s underlying cause. Id. ¶ 18. And we
invited the legislature to more ‚clearly define[] fault in the
statute‛ to resolve those ambiguities. Id. ¶ 20. The dissent in
Mark opined that because the language in section 30-3-5(8)(b)
was ‚broad and generalized,‛ the statute ‚strongly suggests that
the Legislature appreciates the multitude of factual scenarios
that arise in divorce cases‛ and ‚trusts the courts to flesh out the
alimony/fault concept in the course of adjudication of cases over
time.‛ Id. ¶ 25 (Orme, J., dissenting). Subsequent appellate
panels have questioned the reasoning in Mark without
overruling it, see Fairbanks v. Fairbanks, 2010 UT App 31U, para. 5
(McHugh, J., concurring) (noting that the dissent’s reasoning in
Mark is persuasive, but concurring in the majority’s reliance on
Mark based on ‚principles of horizontal stare decisis‛), and
noted its potential inconsistency with prior precedent, see Myers
v. Myers, 2010 UT App 74, ¶ 11 n.3, 231 P.3d 815, aff’d, 2011 UT
65, 266 P.3d 806.
¶43 At trial, Husband argued that Wife’s adultery ‚should
terminate any right to alimony‛ and that the trial court could
‚ignore‛ Mark because the case was inconsistent with prior Utah
case law. Evidently, the trial court did not take Husband up on
that request and awarded Wife $1,281 per month in alimony.
Husband argues that the trial court ‚committed injustice‛ by
‚ignoring the fault basis for terminating this marriage‛ when it
‚fashion*ed+ an award of alimony,‛ and he urges us to overrule
Mark. We decline to do so and conclude that the court properly
relied on that case.
¶44 ‚Those asking us to overturn prior precedent have a
substantial burden of persuasion.‛ State v. Menzies, 889 P.2d 393,
398 (Utah 1994). Horizontal stare decisis requires appellate
courts to adhere to their own prior decisions, and that obligation
‚applies with equal force to courts‛—like ours—that are
20120302-CA 23 2014 UT App 211Roberts v. Roberts
‚comprised of multiple panels.‛ Id. at 399 n.3. Each appellate
panel must ‚observe the prior decisions of another.‛ Id.Although we have authority to overrule our own precedent in
some limited circumstances, we will ‚not do so lightly‛—the
challenged decision must be (1) ‚clearly erroneous‛ or
(2) ‚conditions *must+ have changed so as to render the prior
decision inapplicable.‛ Id. (citation and internal quotation marks
omitted). Consequently, the mere fact that a decision has been
criticized by prior panels or that a particular panel disagrees
with a prior decision is insufficient by itself to justify departures
from our own case law.
¶45 We first note that Husband has not argued that changed
circumstances make Mark a candidate for reversal, so he must
demonstrate that the decision was clearly erroneous.5 He has not
met that ‚substantial burden of persuasion.‛ Menzies, 889 P.2d at
398.
¶46 While the Mark decision has been criticized, it is not
clearly erroneous. It is settled law in Utah that ‚*t+he purpose of
5. In 2013, the legislature passed H.B. 338, a bill that ‚allows a
court to consider fault when awarding alimony‛ and defines
‚fault to include acts that intentionally and knowingly harm or
cause substantial harm, physically or financially, to a spouse or
the children of the marriage.‛ H.B. 338, ch. 373, sec. 1, § 8(b)–(d),
2013 Utah Laws 1907, 1908 (codified at Utah Code Ann. § 30-3-
5(8)(b)–(c) (LexisNexis 2013)). The bill was passed long after the
events that gave rise to this appeal, and neither party has argued
that H.B. 338 calls into question Mark’s continuing validity as to
pre-2013 cases or suggested that it is relevant to this appeal. So
although the 2013 amendment appears to be a direct response to
Mark’s invitation for the legislature to more ‚clearly define*+
fault in the statute,‛ 2009 UT App 374, ¶ 20, 223 P.3d 476, we
leave for another day the task of determining how the new law
affects this line of precedent.
20120302-CA 24 2014 UT App 211Roberts v. Roberts
alimony is to provide support‛ to the recipient spouse ‚and not
to inflict punitive damages‛ on the payor spouse. See English v.
English, 565 P.2d 409, 411 (Utah 1977) (citation and internal
quotation marks omitted). As early as 1946, the Utah Supreme
Court overturned an alimony award that was clearly intended to
‚compensate *the wife+ for her suffering‛ and ‚teach *the
husband+ a lesson.‛ Foreman v. Foreman, 176 P.2d 144, 153–54
(Utah 1946). The court noted that ‚*n+either task is properly
within the issues of a divorce case.‛ Id. at 153. This approach to
alimony differs from the common law rule that ‚a wife could not
obtain alimony when a divorce was granted by reason of her
misconduct.‛ See Alldredge v. Alldredge, 229 P.2d 681, 684–86
(Utah 1951) (describing the common law rule and Utah’s
departure from it), overruled on other grounds by Kiger v. Kiger, 506
P.2d 441 (Utah 1973). Accordingly, in determining alimony, Utah
courts have traditionally considered the recipient spouse’s
‚financial conditions,‛ ‚needs,‛ and ability ‚to produce a
sufficient income,‛ as well as the payor spouse’s ‚ability . . . to
provide support.‛ English, 565 P.2d at 411–12; see also Hendricks v.
Hendricks, 63 P.2d 277, 279 (Utah 1936) (‚The amount of alimony
is measured by the wife’s needs and requirements, considering
her station in life, and upon the husband’s ability to pay.‛),
modified on other grounds, 65 P.2d 642 (Utah 1937). And
historically, fault has also been ‚one of the factors to be
considered with all of the others‛ to determine alimony. See
Christensen v. Christensen, 444 P.2d 511, 512 (Utah 1968); see also
Riley v. Riley, 2006 UT App 214, ¶¶ 19–24, 138 P.3d 84 (affirming
an alimony award where ‚the trial court explicitly stated it had
considered *the husband’s+ fault‛); Christiansen v. Christiansen,
2003 UT App 348U, para. 9 (‚Fault may correctly be considered
by the trial court without penalizing the party found to be at
fault.‛).
¶47 In 1995, the legislature codified these factors, providing
that courts ‚shall consider‛ the recipient spouse’s financial needs
and ability to meet those needs, the payor spouse’s ability to
pay, and the length of the marriage in determining alimony. See
20120302-CA 25 2014 UT App 211Roberts v. Roberts
Utah Code Ann. § 30-3-5(7)(a)(i)–(iv) (Michie Supp. 1995). These
factors are still part of Utah law today. Id. § 30-3-5(8)(a)(i)–(iv)
(LexisNexis 2013). The 1995 changes to section 30-3-5 also
allowed trial courts to continue to exercise their discretion to
‚consider the fault of the parties in determining alimony.‛ See id.
§ 30-3-5(7)(b) (Michie Supp. 1995). But nowhere in the 1995
amendments did the legislature repudiate what had become
something of an axiom before the statute was passed and has
since remained uncontroversial—that the purpose of divorce
proceedings ‚should not be to impose punishment on either
party.‛ See Jesperson v. Jesperson, 610 P.2d 326, 328 (Utah 1980); see
also Goggin v. Goggin, 2013 UT 16, ¶ 52, 299 P.3d 1079 (noting that
courts do not ‚have discretion to distribute marital property in a
way that is designed to punish a party’s contemptuous
behavior‛).
¶48 In Mark, we noted the analytical tension involved in
allowing courts to consider fault to determine alimony but
prohibiting any spousal support obligations that operate as a
punishment for misconduct. 2009 UT App 374, ¶ 17, 233 P.3d
476. That is, ‚if a trial court uses its broad statutory discretion to
consider fault in fashioning an alimony award and then, taking
that fault into consideration, adjusts the alimony award upward or
downward, it simply cannot be said that fault was not used to
punish or reward either spouse.‛ Id. In light of clear Utah law
expressing disapproval for punitive alimony awards, ‚trial
courts [were] left in the difficult position of trying to determine
what the term ‘fault’ means, in what context, and what, if any,
consequence fault should have on an award of alimony.‛ Id. We
pointed out that the version of the statute applicable at the time
provided ‚no meaningful guidance‛ on that issue, id. ¶ 18, and
we also noted that ‚consideration of fault is already built into the
system on virtually every issue that arises in domestic cases,‛ id.
¶ 19.
¶49 We acknowledge that Mark’s prohibition on considering
fault at all in determining alimony seems facially inconsistent
20120302-CA 26 2014 UT App 211Roberts v. Roberts
with the statute’s clear direction that courts ‚may consider the
fault of the parties in determining alimony.‛ Utah Code Ann.
§ 30-3-5(8)(b) (LexisNexis 2007). As we have discussed, there is a
long line of cases that explicitly take fault into consideration. But
the tension between considering fault and avoiding punitive
alimony awards existed long before the legislature amended
section 30-3-5 in 1995, and nothing in those revisions explicitly
resolved that tension. See Kirtsaeng v. John Wiley & Sons, Inc., 133
S. Ct. 1351, 1363 (2013) (‚*W+hen a statute covers an issue
previously governed by the common law,‛ courts typically
presume that the legislature ‚intended to retain the substance of
the common law.‛ (alteration in original) (citation and internal
quotation marks omitted)). So while Mark is certainly open to
criticism, it can also be read as a reasonable attempt to resolve an
analytical problem that has plagued this area of the law for
decades—a problem that became less amenable to judicial
resolution after the legislature essentially codified it by enacting
the 1995 version of section 30-3-5.6
¶50 Husband is, of course, correct that the precedent in this
area of the law is difficult to reconcile, and at least two members
of this court have indicated that they would probably decide
Mark differently today if given the opportunity to write on a
clean slate. See supra ¶ 42. But the slate is not clean, and without
6. As we have discussed, the 2013 version of the statute appears
to be an attempt to more ‚clearly define fault‛ and clarify how
courts may permissibly consider it when awarding alimony. See
Mark v. Mark, 2009 UT App 374, ¶ 20, 223 P.3d 476; see also Utah
Code Ann. § 30-3-5(8)(b)–(c) (LexisNexis 2013) (allowing courts
to ‚consider the fault of the parties‛ when awarding alimony
and providing a definition of fault). Whether the new statute
resolves the analytical tension involved in prohibiting punitive
alimony awards while also taking fault into account is an issue
that is not before us, so we leave that question for another day.
See supra note 5.
20120302-CA 27 2014 UT App 211Roberts v. Roberts
a compelling demonstration that Mark was clearly erroneous or
that there has been some dramatic change in circumstances,
principles of stare decisis require us to refuse Husband’s
invitation to go back to the drawing board. We therefore
conclude that the court properly relied on Mark and had no
obligation to take into account Wife’s adultery in calculating
either the amount or duration of alimony.
C. Cohabitation
¶51 Finally, we also affirm the trial court’s conclusion that
Wife was not cohabiting with Friend. The trial court found that
even though Wife admitted ‚to having a sexual relationship‛
with Friend, Wife also testified that ‚she maintains a separate
residency‛ from him. Wife did not have a key to Friend’s home;
she paid her own mortgage, insurance, and utility bills; and
while she spent most nights at Friend’s home when she did not
have the children with her, she stayed over ‚less than fifty
percent of the time.‛ The court further found that although Wife
and Friend ‚occasionally share dining and other food expenses‛
and Friend ‚previously stored his boat‛ in Wife’s garage, they
had ‚not jointly acquired any assets,‛ and the boat was now
stored elsewhere. Husband does not challenge the court’s
findings of fact, but he argues that the ‚trial court erred in
concluding, based upon these facts, that Wife did not cohabit
with [Friend].‛ Without citation to the record, he asserts that
‚Wife spent virtually every night with *Friend+ at his home,‛
that they ‚shared expenses,‛ and that they were also
contemplating marriage. Coupled with their intimate
relationship and the storage of Friend’s boat in Wife’s garage,
Husband maintains, these facts demonstrated ‚a relationship
akin to that between a husband and wife.‛
¶52 Utah Code section 30-3-5 provides that an alimony award
‚terminates upon establishment by the party paying alimony
that the former spouse is cohabitating with another person.‛
Utah Code Ann. § 30-3-5(10) (LexisNexis 2013). The key question
20120302-CA 28 2014 UT App 211Roberts v. Roberts
in analyzing cohabitation is ‚whether the parties entered into a
relationship akin to that generally existing between husband and
wife.‛ Myers v. Myers, 2011 UT 65, ¶ 22, 266 P.3d 806 (citation
and internal quotation marks omitted). While there are no
‚required elements of cohabitation because there is no single
prototype of marriage that all married couples conform to,‛ the
‚hallmarks‛ courts look for include whether the parties have ‚a
shared residence, an intimate relationship, and a common
household involving shared expenses and shared decisions.‛ Id.
¶ 24. In Haddow v. Haddow, 707 P.2d 669 (Utah 1985), for
example, although the parties had a sexual relationship, the
supreme court reversed a cohabitation finding where the man
did not have a key to the woman’s home, there was no evidence
he used her home when she was not there, and he did not
contribute any money to the woman’s mortgage, insurance, or
utility bills. Id. at 672–74. The fact that the man had parked his
van in the woman’s driveway for several months was not
sufficient to show cohabitation, particularly in light of evidence
that the van was not the man’s primary vehicle. Id. at 673.
¶53 Here, the trial court’s findings of fact are adequate to
support its conclusion that Wife and Friend had not established
a relationship akin to that of a married couple. The facts that
Friend stored a vehicle in Wife’s garage at some point, that Wife
and Friend shared some dining and food expenses, and that they
had an ongoing intimate relationship weighs in favor of finding
cohabitation. But, as in Haddow, neither party here had a key to
the other’s residence; Wife paid her own mortgage, insurance,
and utility bills; and neither she nor Friend regarded the other’s
home as their permanent residence. Without any conclusive
evidence that Wife and Friend had established a common
residence and shared any major household expenses, their
sexual relationship and willingness to buy food together simply
does not amount to cohabitation as a matter of law and therefore
did not require such a determination by the trial court.
20120302-CA 29 2014 UT App 211Roberts v. Roberts
CONCLUSION
¶54 We conclude that the trial court’s findings of fact are
insufficiently detailed to permit appellate review of its decisions
awarding Wife alimony, denying Husband’s request to
retroactively modify his child support payments, and awarding
Wife attorney fees. Accordingly, we remand those issues for the
entry of additional findings of fact. We affirm the trial court’s
denial of Husband’s request for reimbursement of the children’s
medical expenses and its decision imposing the tax liability of
Wife’s business on both parties. Finally, we conclude that the
trial court properly relied on Mark when it declined to take into
account Wife’s fault in determining alimony and that the court
had no obligation to grant Husband’s counter-petition for a
fault-based divorce. We also affirm the court’s determination
that there was no cohabitation.
20120302-CA 30 2014 UT App 211