Anderson v. Anderson , 414 P.3d 1069 ( 2018 )

2018 UT App 19THE UTAH COURT OF APPEALS
LYNESSA MICHELLE ANDERSON,
Appellee,
v.
LOREN PRICE ANDERSON,
Appellant.
Opinion
No. 20160507-CA
Filed February 1, 2018
Fourth District Court, Provo Department
The Honorable Samuel D. McVey
No. 084400367
Rosemond G. Blakelock, Attorney for Appellant
Jill L. Coil and Luke A. Shaw, Attorneys for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.
TOOMEY, Judge:
¶1 Following a bench trial for Loren Price Anderson’s
petition to modify child support and alimony, the district court
awarded Lynessa Michelle Anderson $1,900 per month for
alimony, $714.64 for child support, and $16,403.44 in attorney
fees. Loren 1 appeals these awards, contending the district court
abused its discretion by (1) imputing income to him in the
amount of $6,662 per month; (2) awarding Lynessa alimony in
excess of her actual needs; (3) awarding child support to Lynessa
1. “As is our practice in cases where both parties share a last
name, we refer to the parties by their first name with no
disrespect intended by the apparent informality.” Smith v. Smith,
2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
Anderson v. Anderson
based on the improperly imputed income; and (4) awarding
Lynessa attorney fees without “appropriate consideration of the
relevant attorney fees factors.”
¶2 We agree with Loren that the court abused its discretion
in awarding Lynessa alimony in the amount of $1,900 per
month, but only to the extent that it erroneously considered
retirement fund contributions in Lynessa’s monthly expenses,
because they were not enjoyed during the marriage, and we
remand solely for removal of that amount from the alimony
award. But we conclude there was no abuse of discretion when
the district court included anticipated car loan payments and
health insurance in Lynessa’s monthly expenses, because
alimony need not be based solely on current expenses.
¶3 We decline to address Loren’s claims of error with respect
to his imputed income and the award of child support based on
his imputed income because he failed to support his argument
with reasoned analysis using legal precedent.
¶4 Finally, the district court did not abuse its discretion in
awarding attorney fees to Lynessa based on her need and
Loren’s ability to pay them.
BACKGROUND
¶5 Loren and Lynessa were married from 1989 to 2008.
During their marriage, Lynessa stayed home to raise their four
children while Loren worked as a contractor installing carpet
and countertops. According to Lynessa, during the marriage
Loren was “a workaholic,” “always looking for the next job,”
and was a great provider for the family. Indeed, there was
money for extras: two of their sons, Tyler and Steele, were on
hockey teams that traveled for games, which could cost more
than $7,000 in fees and other expenses per year, which the family
was able to pay. Loren also “sometimes [paid] for other kids’
20160507-CA 2 2018 UT App 19Anderson v. Anderson
hockey tuition fees because their families couldn’t afford it
themselves.” Tyler recounted that while his parents were
married, “we never went without. . . . We had everything we
needed.”
¶6 After working for different companies for a few years
early on in the marriage, Loren started his own contracting
business. He primarily submitted subcontracting bids to Action
Target, a construction company that provided installations for
military, law enforcement, and commercial gun ranges. The
money he earned was deposited into a checking account
separate from Lynessa’s checking account, and whenever
Lynessa needed to pay bills or required funds for the children,
Loren gave her cash. Lynessa was never privy to what Loren
earned for each project and was rarely made aware of the
identity of the contractor. But Tyler, Steele, and Lynessa each
observed Loren carrying a great deal of cash. After a project’s
completion, Loren paid cash to his workers.
¶7 In 2006, the Andersons’ marriage started to break down.
Loren admitted he was “having some troubles at that time” and
began using drugs. By Lynessa’s account, Loren was no longer
“in his right mind set” and he became “very promiscuous” and
she “didn’t want him around anymore.” Loren’s drug use
rendered him incapable of earning an income for a time and it
ultimately led to their divorce.
¶8 In 2008, the district court entered a default decree of
divorce after Loren failed to respond to Lynessa’s petition.
Because Loren did not respond and failed to assist the court with
financial documents, the court relied on his 1099 Form from 2007
showing an annual income of $219,246 “or $18,271 per month” to
determine his ability to pay child support and alimony. The
court imputed income to Lynessa in the amount of $1,014 per
month. Ultimately, Loren was ordered to pay $2,945 per month
for child support and $2,719 per month for alimony. The child
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support obligation was to be reduced as each child reached the
age of eighteen, and the alimony obligation was to continue for a
period equal to the length of the marriage.
¶9 Beginning around the time of the divorce, Loren pleaded
guilty to drug and fraud related crimes and was in and out of jail
for three years. Though he was obligated to pay Lynessa a total
of $5,664 each month for alimony and child support, he rarely
paid and never in the full amount. When he did pay, it was
always in cash, until the Office of Recovery Services (ORS)
became involved. Lynessa testified, “We would go long periods
of time without anything from [Loren]. For the longest time he
was paying 200 a month, and he just recently changed it to
paying [550].” Even after ORS became involved, Lynessa
received only $600 per month for combined child support and
alimony. This required Lynessa to receive financial assistance
from her church, friends, and family. She also sold some of her
gold, jewelry, and other items to provide for herself and the
children. But even with this help, she was always behind on
bills, and neither she nor the children lived a lifestyle similar to
what they enjoyed during the marriage. Tyler testified that their
living conditions changed after the divorce, that Lynessa could
not fix things around the house, that they relied on their church
for food, and that without the money for alimony or child
support, Lynessa worked as often as she could “even if it meant
not seeing [the children] as often.”
¶10 In 2011, Loren filed a petition to modify child support and
alimony (the Petition) based on a substantial change in
circumstances that resulted in a decrease in income from the
time the divorce decree was entered. He alleged that he could
not afford to pay child support or alimony because the amount
he was ordered to pay was “in excess of [his] income.” Loren
claimed he had no income during his incarceration and a
decreased ability to earn an income similar to what he had
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earned during the marriage because he could no longer maintain
his own construction business.
¶11 Lynessa and Loren each filed financial declarations and
other documents related to their respective incomes and
expenses. Lynessa provided her 2014 tax return and pay stubs
from 2015, which supported her net monthly income of $2,572.01
as purported in her financial declaration, and claimed monthly
expenses in the amount of $5,496.21. Loren provided incomplete
tax returns for the years he had actually filed them and monthly
pay stubs from one employer with hourly rates that varied from
about $20 per hour to $33 per hour. But Loren claimed he was
earning only $11 per hour, or $2000 per month.
¶12 The district court held a bench trial in 2015 to resolve the
issues Loren raised in the Petition. At trial, most of the testimony
related to Loren’s ability to earn income, whether he was
actually earning only $2,000 per month, and whether he or his
new wife (New Wife) owned a construction company.
¶13 Around the time Loren filed the Petition, he had initiated
a romantic relationship with New Wife and helped her to
register a construction company, Steelcoat. New Wife had never
owned a business before, let alone a construction company, and
both New Wife and Loren admitted that she relied on Loren to
operate Steelcoat. Loren claimed he was only an employee of
Steelcoat and made just $11 per hour, or $2,000 per month, but
also admitted at trial that he was the “face [of Steelcoat] to a lot
of people at Action Target”—the construction company that
subcontracts most of Steelcoat’s work and with which Loren has
had a long professional relationship.
¶14 Loren’s claimed income and whether New Wife was
indeed the sole proprietor of Steelcoat were called into question
when New Wife admitted that Loren helped create all of the bids
Steelcoat sent to different companies and that she was not sure
whether the bids needed to be signed before submission. In
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addition, a representative from Action Target testified that
submitting bids is “pretty specific” and “detailed” work that
requires a bidder to have “at least done some [installation] work
before, or be guided in what it takes to do it.” The representative
also testified that Action Target works closely with its
subcontractors during projects and that when it accepts
Steelcoat’s bids the company communicates with Loren and not
with New Wife. Further, Loren admitted that Action Target has
hired him, personally, to complete certain of its projects, but he
did not provide any information related to the payments he
received for those projects.
¶15 In addition to Loren’s failure to provide the court with a
complete tax return, other than a 2004 tax return, to support his
claimed monthly income of $2,000 per month, Lynessa’s attorney
elicited testimony from Steele that further negated Loren’s claim
about his income. Steele testified that when he asked Loren for
financial help for hockey fees just before the trial, Loren
responded that if Lynessa “would stop coming after him [for]
money” that “it would be easier for him to not have to hide what
he’s doing.” And when the court asked about his ability to earn a
better income, Loren admitted he had not applied for
employment that would pay more than $11 per hour “in the last
three or four years” prior to the trial.
¶16 After trial, the district court entered findings of fact and
conclusions of law. It found that there had been a “material and
substantial change in circumstance” with respect to the incomes
of both parties that allowed for modification of the divorce
decree. Because Loren failed to provide complete financial
documents or tax returns, the court had to determine an
appropriate amount of income to impute to him. It found
incredible the testimony regarding Loren’s income and New
Wife’s sole ownership of Steelcoat. Loren admitted that Action
Target employed him personally for specific projects, yet
provided the court with no documentation to show what he was
20160507-CA 6 2018 UT App 19Anderson v. Anderson
paid or invoice records “from his prior relationship with Action
Target” to give the court a general idea of the income Loren was
making and could continue to make. The court also found that
Steele’s testimony that Loren was “hid[ing] things” from
Lynessa was a “refer[ence] to unreported income.” The court
therefore relied on Loren’s 2004 tax return, which represented a
period when Loren owned and operated a company similar to
Steelcoat, to impute income to him. In 2004, Loren’s adjusted
gross income was $41,317. The court added $20,000 to this
amount based on what Loren paid for his sons’ hockey expenses
and his ability to pay for other team members’ fees. The court
also considered inflation rates and ultimately imputed income to
him in the amount of $79,948 annually, or $6,662 monthly.
¶17 When determining the amount of alimony to award
Lynessa, the court addressed her claimed monthly expenses.
These amounted to $5,496.21, but the court removed “the
amount spent on adult children, school fees which can be
waived[,] and pet care” and found that her reasonable monthly
expenses were $4,400. Based on these expenses and her monthly
income of $2,513, the court awarded $1,900 per month for
alimony. This amount was to be applied retroactively,
subsuming the original $2,954 monthly award, starting from the
time the divorce decree was entered and lasting for a period
equal to the length of the marriage. The court also reduced the
award of child support to $714.64 per month for the parties’
remaining minor child.
¶18 Loren timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶19 Loren raises four issues on appeal. First, he contends the
district court abused its discretion in imputing his monthly
income at $6,662. In a divorce action, the district court “‘is
permitted considerable discretion in adjusting the financial and
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property interests of the parties, and its actions are entitled to a
presumption of validity.’” Rayner v. Rayner, 2013 UT App 269,
¶¶ 4, 26, 316 P.3d 455 (quoting Goggin v. Goggin, 2013 UT 16,
¶ 44, 299 P.3d 1079). We will reverse only if “(1) there was a
misunderstanding or misapplication of the law resulting in
substantial and prejudicial error; (2) the evidence clearly
preponderated against the finding; . . . (3) such a serious inequity
has resulted as to manifest a clear abuse of discretion”; or (4) the
district court “abuse[d] its discretion by failing to enter specific,
detailed findings supporting its financial determinations.” Id.(citations and internal quotation marks omitted).
¶20 Second, Loren contends the district court erred in
awarding Lynessa alimony in the amount of $1,900 per month,
“even if [Loren’s] income should be imputed at $6,662,” because
the award was “hundreds of dollars in excess of [Lynessa’s]
stated monthly needs” because it included anticipated expenses
and was combined with the award of child support.
¶21 Third, Loren contends the district court erred in “setting
[his] child support obligation in an amount based upon his
imputed income of $6,662” per month. We review the district
court’s “decisions regarding child support and alimony under
the abuse of discretion standard.” Andrus v. Andrus, 2007 UT
App 291, ¶ 9, 169 P.3d 754.
¶22 Finally, Loren contends the district court erred in
awarding Lynessa attorney fees because it failed to consider the
“relevant attorney fees factors.” Although the decision regarding
attorney fees in divorce proceedings “rests primarily in the
sound discretion of the [district] court,” we will reverse the
award if the court fails to provide adequate findings of fact
regarding the following factors: (1) the receiving spouse’s
financial need, (2) the paying spouse’s ability to pay, and (3) the
reasonableness of the requested amount of fees. See Oliekan v.
Oliekan, 2006 UT App 405, ¶ 30, 147 P.3d 464.
20160507-CA 8 2018 UT App 19Anderson v. Anderson
ANALYSIS
I. Imputed Income
¶23 Loren first contends the district court erred in imputing
$6,662 in monthly income to him because the court used his 2004
tax return to determine the amount he was capable of making,
rather than using the pay stubs or more recent tax returns, and
added $20,000 to that amount based on expenses incurred
during the marriage that were discussed at trial. But Loren has
provided no reasoned analysis to support this contention and we
therefore affirm with respect to this issue.
¶24 Rule 24 of the Utah Rules of Appellate Procedure
identifies the briefing requirements on appeal. An appellant’s
brief must assert contentions of error that occurred in the
proceedings below and develop a reasoned argument for why
the purported errors should be reversed. See Utah R. App. P.
24(a)(8). The appellant’s argument must be supported with
citations to the record and legal authority that governs the issues
presented. See id. An argument is inadequately briefed, and in
violation of rule 24, when it “merely contains bald citations to
authority [without] development of that authority and reasoned
analysis based on that authority.” Bank of America v. Adamson,
2017 UT 2, ¶ 11, 391 P.3d 196 (alteration in original) (citation and
internal quotation marks omitted).
¶25 The Utah Supreme Court has recently clarified that the
failure to comply with rule 24 is no longer “an absolute bar to
review of an argument on appeal.” See Rose v. Office of Prof’l
Conduct, 2017 UT 50, ¶ 64, petition for cert. filed, Dec. 4, 2017 (No.
17-7003). But failure to adequately brief an argument will almost
certainly result in the failure to “‘carry [the] burden of
persuasion on appeal.’” See id. (quoting Adamson, 2017 UT 2, ¶ 12).
¶26 Loren has marshaled the record facts he is challenging
with respect to his imputed income—sixteen pages were
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devoted to this issue, alone. See Utah R. App. P. 24(a)(6)(A); see
also id. R. 24(a)(8). Loren also provided citations to a few cases
and a statute. But he has failed to apply the legal authority he
cited to any of the facts.
¶27 Because Loren failed to develop a reasoned argument
with the use of legal authority to support his contention that the
district court improperly imputed income to him, he has failed
to meet his burden of persuasion on appeal with respect to this
issue. See Adamson, 2017 UT 2, ¶ 12. We therefore affirm the
district court’s decision to impute to Loren a monthly income of
$6,662. As a result, we likewise do not address his contention on
appeal that the district court erred in “setting [his] child support
obligation in an amount based upon his imputed income of
$6,662” per month.
II. Alimony
¶28 Loren contends that “even if the court’s imputation of
income” to him was correct, the alimony award of $1,900 per
month was in excess of Lynessa’s needs. Loren makes two
overarching arguments related to this contention. First, he takes
issue with items listed in Lynessa’s financial declaration that
“were not actual expenses,” “were not supported by any
evidence,” and “did not exist” at the time of the marriage.
Second, he argues the award was hundreds of dollars in excess
of Lynessa’s needs because she was also awarded $714.64 in
child support.
¶29 In divorce proceedings, the district court’s determinations
related to financial interests of the parties “are entitled to a
presumption of validity” and we will not reverse absent a clear
abuse of discretion. See Goggin v. Goggin, 2013 UT 16, ¶ 26, 299
P.3d 1079 (citation and internal quotation marks omitted). “The
purposes of an alimony award include enabling the receiving
spouse to maintain, as nearly as possible, the standard of living
enjoyed during the marriage, and preventing the receiving
20160507-CA 10 2018 UT App 19Anderson v. Anderson
spouse from becoming a public charge.” Rudman v. Rudman, 812
P.2d 73, 76 (Utah Ct. App. 1991). The court must consider three
factors when determining alimony: “(1) the financial condition
and needs of the receiving spouse, (2) the ability of the receiving
spouse to produce sufficient income for him- or herself, and
(3) the ability of the responding spouse to provide support.” Id.A. Lynessa’s Monthly Expenses
¶30 Loren challenges the following three expenses identified
in Lynessa’s financial declaration: (1) a retirement account
contribution, (2) a car loan, and (3) health insurance. He argues
that these were not “actual expenses” or needs because Lynessa
testified they were anticipated expenses rather than what she
was presently paying.
¶31 An award of alimony is intended to help the parties
“maintain the standard of living established over the course of
the marriage rather than the amount that is actually being
spent.” Woolums v. Woolums, 2013 UT App 232, ¶ 9, 312 P.3d 939.
We have previously defined “standard of living” as “a minimum
of necessities, comforts, or luxuries that is essential to
maintaining a person in customary or proper status or
circumstances.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct.
App. 1991) (citation and internal quotation marks omitted). This
court has therefore “disavowed the notion that ‘standard of
living is determined by actual expenses alone.’” Woolums, 2013
UT App 232, ¶ 9 (quoting Howell, 806 P.2d at 1212). Actual
expenses “may be necessarily lower than needed to maintain an
appropriate standard of living for various reasons, including,
possibly, lack of income.” Howell, 806 P.2d at 1212. It necessarily
follows that if the court determines the receiving spouse’s actual
and anticipated needs are reasonable, that they are consistent
with the standard of living enjoyed during the marriage, and
that the paying spouse can afford to cover the shortfall of those
20160507-CA 11 2018 UT App 19Anderson v. Anderson
needs, then the alimony award should be in an amount to
accommodate that shortfall.
¶32 Here, the anticipated expenses of the car loan and health
insurance were reasonable anticipated expenses for basic needs
that were established as standard during the marriage. Loren,
Lynessa, and Tyler each testified at trial that Lynessa had a car
during the marriage, but that it broke down and she was
without a car for two years leading up to the trial. Lynessa
testified that she would have purchased a car to replace the old
one if she had been receiving the alimony she was entitled to.
Therefore, it was reasonable for the court to include the car loan
in Lynessa’s monthly expenses.
¶33 The district court likewise did not abuse its discretion by
including health insurance costs in Lynessa’s monthly expenses.
Lynessa testified that she suffered from medical conditions both
during and after the marriage for which she took medication and
was under medical care. There was no suggestion at trial that her
medical needs were not provided for during the marriage, and
the original divorce decree indicated that Loren was providing
some medical insurance at the time the marriage dissolved. 2 And
although Lynessa was not asked at trial whether the parties had
health insurance during the marriage, Loren was aware, prior to
trial, that Lynessa identified health insurance as an expense in
her financial declaration. He therefore left the issue for the
district court to determine, using its broad discretion based on
the evidence before it. See Woolums, 2013 UT App 232, ¶ 10
(holding “[t]he district court’s evaluation of and reliance on
Wife’s testimony, along with its own determinations of the
reasonableness of the claimed expenses, fell squarely within its
2. Our review of the record shows that the original divorce
decree ordered Loren to continue to pay for the children’s health
insurance.
20160507-CA 12 2018 UT App 19Anderson v. Anderson
broad discretion to determine an appropriate alimony award”).
Given the medical conditions Lynessa testified she suffered from
both during and after the marriage, and that health insurance
was at least provided for the children during the marriage, as
well as Loren’s failure to contest whether health insurance for
Lynessa was established during the marriage, we conclude there
was no abuse of discretion in considering anticipated health
insurance costs in her monthly expenses.
¶34 As to Loren’s challenge regarding the retirement account,
we agree that the district court exceeded the scope of its
discretion when it included among Lynessa’s necessary monthly
expenses $200 per month for retirement account contributions.
¶35 Utah Code section 30-3-5 allows the district court to
address the needs of a spouse that did not exist during the
marriage or at the time the divorce decree was entered only if
“the court finds extenuating circumstances that justify that
action.” Utah Code Ann. § 30-3-5(h)(ii) (LexisNexis Supp. 2017).
This court has previously explained that retirement accounts
“may not ordinarily be factored into an alimony determination,”
unless “funds for post-divorce . . . retirement accounts are
necessary because contributing to such accounts was standard
practice during the marriage and helped to form the couple’s
marital standard of living.” Bakanowski v. Bakanowski, 2003 UT
App 357, ¶ 16, 80 P.3d 153. If this circumstance exists and the
district court determines that the retirement account “should be
taken into account as part of the needs analysis, then the court’s
findings must be even more detailed than those in a standard
needs analysis,” because this award “is the exception, rather
than the rule.” Id.; see also Rudman v. Rudman, 812 P.2d 73, 76 n.1
(Utah Ct. App. 1991) (explaining that in cases “where the
evidence is severely conflicted, it is essential that the reviewing
court clearly understand the findings on which the [district]
court bases its conclusions”).
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¶36 Here, the district court made no findings related to
Lynessa’s claim for $200 of monthly retirement contribution. At
best, the order noted, “[Lynessa] included expenses that were
reasonable, such as a car, insurance and health insurance, even
though she does not presently have them but would have them
if [Loren] paid support.” Though this statement could be read as
a non-exhaustive list of reasonable expenses not yet incurred,
failure to provide any factual findings related to the claimed
retirement account expense is a violation of our explicit
requirement that the court’s findings related to such accounts
“must be even more detailed than those in a standard needs
analysis.” See Bakanowski, 2003 UT App 357, ¶ 16. In addition,
our review of the record shows that the initial divorce decree
specifically stated, “Retirement and Savings. Neither party has a
pension nor a profit sharing plan through his or her place of
employment or otherwise.” The district court relied on this
divorce decree for certain of its findings of facts and it was
therefore an abuse of discretion to consider the anticipated
retirement fund contribution in Lynessa’s monthly expenses.
¶37 We remand to the district court for the limited purpose of
removing the $200 retirement fund contribution from Lynessa’s
necessary monthly expenses and to adjust the award of alimony
accordingly.
B. Awarding Alimony and Child Support
¶38 Loren contends the district court abused its discretion in
awarding Lynessa $1,900 for alimony because she was also
receiving approximately $715 per month in child support, and
these combined awards exceed her stated monthly expenses. We
disagree.
¶39 Child support is a “basic and unalienable right . . . vested
in the minor.” See Reick v. Reick, 652 P.2d 916, 917 (Utah 1982)
(per curiam). This court has previously explained that “[i]t is
typically best practice for [district] courts to analyze alimony
20160507-CA 14 2018 UT App 19Anderson v. Anderson
without factoring in child support obligations.” Dobson v.
Dobson, 2012 UT App 373, ¶ 11, 294 P.3d 591. But 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.”
Roberts v. Roberts, 2014 UT App 211, ¶ 17, 335 P.3d 378 (alteration
in original) (citation and internal quotation marks omitted).
“[W]hen at least some of the children’s expenses seem to have
been factored into the alimony calculation already” then the
district court must explain its decision not to include child
support payments as income. See id.
¶40 Here, the district court specifically removed “the amount
spent on adult children [and] school fees which can be waived”
from Lynessa’s monthly expenses. Loren has not directed us to
anything within Lynessa’s financial declaration that could be
considered additional expenses spent solely on the minor child
still residing with Lynessa. Without providing a reasoned
analysis with respect to awarding child support in addition to
alimony, Loren has failed to carry his burden of persuasion on
appeal with respect to this issue. See Bank of America v. Adamson,
2017 UT 2, ¶¶ 12–13, 391 P.3d 196 (providing that a party who
“fails to devote adequate attention to an issue is almost certainly
going to fail to meet its burden of persuasion” on appeal).
¶41 The court also explained that “although her current living
style does not match what she enjoyed during the marriage,
there are insufficient funds after the divorce . . . between the
parties to allow her to live that lifestyle.” The court appears to
imply that the award of alimony could have been higher if
Loren’s income was similar to what he earned during the
marriage.
¶42 The district court did not abuse its discretion when it
awarded alimony to Lynessa in addition to child support.
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III. Attorney Fees
¶43 Loren contends the district court erred in awarding
attorney fees to Lynessa without “an appropriate consideration
of the relevant attorney fees factors.” We disagree.
¶44 In the context of divorce, “[t]he decision to award
attorney fees and the amount thereof rests primarily in the
sound discretion of the [district] court,” but the court must “base
the award on evidence of the receiving spouse’s financial need,
the payor spouse’s ability to pay, and the reasonableness of the
requested fees.” Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App.
1998); see also Utah Code Ann. § 30-3-3(1) (LexisNexis 2013)
(providing that in an action to modify child support or alimony,
“the court may order a party to pay the costs, attorney fees, and
witness fees . . . of the other party to enable the other party to
prosecute or defend the action”).
¶45 Here, the district court considered the required attorney
fees factors when awarding fees to Lynessa. The court found that
because Loren “has been able to get support and income
modified from the [divorce] decree,” and “since [he] has not
been paying adequate alimony or child support, [Lynessa]
cannot afford attorney fees but [Loren] has the ability to pay
them.” 3 Loren’s ability to pay was also based on the income
imputed to him.
3. The court also commented that Loren’s “hiding of income and
failure to be forthcoming with complete records makes it
inequitable to award him attorney[] fees” and that those same
factors would allow an award of attorney fees to Lynessa “under
the bad faith provision” of Utah Code section 78B-5-825. We
agree with Loren that this was an incorrect application of section
78B-5-825, which allows a court to award attorney fees to the
prevailing party “if the court determines that the action or
(continued…)
20160507-CA 16 2018 UT App 19Anderson v. Anderson
¶46 The district court did not abuse its discretion in awarding
attorney fees to Lynessa. 4
¶47 On appeal, Lynessa has requested that she be awarded
attorney fees incurred in her defense of this appeal. “Generally,
when the [district] 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.” Osguthorpe v. Osguthorpe, 872
(…continued)
defense to the action was without merit or not brought or
asserted in good faith.” Utah Code Ann. § 78B-5-825(1)
(LexisNexis 2012). First, it is unclear who the prevailing party is
in this situation. Although Loren was unable to persuade the
court that he was making only $11 per hour, he successfully
petitioned it to reduce his obligations of alimony and child
support. Second, because of this success, we cannot agree that
the action was without merit or brought in bad faith. Though we
do not condone Loren’s failure to provide adequate financial
documents to support his alleged income, we do not agree with
the court that Lynessa deserves attorney fees under the bad faith
provision of the attorney fees statute. But this analysis has no
effect on the district court’s award of attorney fees under Utah
Code section 30-3-3.
4. The court awarded attorney fees in the amount of $16,403.44
“as stated in Petitioner’s Affidavit of Attorney’s Fees.” This
affidavit provided the various billing rates of attorneys from two
law firms, and provided the total number of hours each firm
spent on Lynessa’s case; the affidavit did not identify which
attorneys spent what amount of time on the case in calculating
the final amount. But Loren has not argued this was error and
therefore we will not address whether it was an abuse of
discretion for the district court to rely solely on this affidavit
when determining the amount of attorney fees.
20160507-CA 17 2018 UT App 19Anderson v. Anderson
P.2d 1057, 1059 (Utah Ct. App. 1994) (citation and internal
quotation marks omitted); see also Oliekan v. Oliekan, 2006 UT
App 405, ¶ 32, 147 P.3d 464 (“[W]e will generally award attorney
fees on appeal to the prevailing party if the [district] court
awarded attorney fees and the receiving party prevails on the
main issues on appeal.”). Because the district court properly
awarded attorney fees to Lynessa in the action below and
because she has substantially prevailed on appeal, we
accordingly award her attorney fees on appeal and remand to
the district court to calculate the reasonable amount of fees and
costs she incurred in connection with this appeal. See Osguthorpe,
872 P.2d at 1059.
CONCLUSION
¶48 We conclude the district court did not abuse its discretion
when it included anticipated costs for health insurance and car
loan payments in Lynessa’s necessary monthly expenses because
they were reasonable expenses within the marriage standard of
living and that she would have continued to incur if Loren had
consistently paid her alimony and child support. The court also
did not abuse its discretion in awarding child support in
addition to alimony because child support is a vested right of the
child and the court removed costs from Lynessa’s monthly
expenses that related specifically to the children. The district
court also did not abuse its discretion in awarding attorney fees
to Lynessa under Utah Code section 30-3-3 because it gave
appropriate consideration to the relevant attorney fees factors.
¶49 We further conclude the district court abused its
discretion when it included retirement account contributions in
Lynessa’s necessary monthly expenses because contribution to
such an account did not exist during the marriage.
¶50 Accordingly, we remand to the district court for the
removal of retirement account contribution expenses from the
20160507-CA 18 2018 UT App 19Anderson v. Anderson
alimony calculation and to calculate reasonable attorney fees
incurred by Lynessa on appeal.
20160507-CA 19 2018 UT App 19