Sauer v. Sauer ( 2017 )

2017 UT App 114THE UTAH COURT OF APPEALS
PAUL R. SAUER II,
Appellant,
v.
PAULINE L. SAUER,
Appellee.
Opinion
No. 20150952-CA
Filed July 13, 2017
Third District Court, Salt Lake Department
The Honorable Su J. Chon
No. 134902556
David Maddox, Attorney for Appellant
Pauline L. Sauer, Appellee Pro Se
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and JILL M. POHLMAN
concurred.
CHRISTIANSEN, Judge:
¶1 Paul R. Sauer II and Pauline L. Sauer married in 1987 and
separated in 2004. Paul filed for divorce in 2013. After a bench
trial, the court issued a decree of divorce in November 2015, in
which it awarded Pauline half of Paul’s retirement benefits and
alimony of $576 per month and ordered Pauline to reimburse
Paul approximately $1,438 for moving expenses and utility bills.
Paul appeals, contending that the trial court abused its discretion
in weighing the evidence, by imputing Pauline’s needs, and by
entering conclusions not supported by the evidence. We affirm.
¶2 Paul first contends that the trial court “abused its
discretion when it stated that [he] failed to meet his burden of
proof when offering evidence relating to debt and property
Sauer v. Sauer
distribution.” Paul notes that the standard of proof applicable to
civil actions is the preponderance of the evidence. See Morris v.
Farmers Home Mutual Ins. Co., 500 P.2d 505, 507 (Utah 1972). Paul
then asserts that because he “provided copious amounts of
evidence in testimony and exhibits” that “went un-refuted by
[Pauline],” the court abused its discretion when it determined
that he had not met his burden of proof. In essence, Paul’s
argument is that because he presented uncontested evidence
regarding the value of certain items, the trial court was required
to find that evidence credible.
¶3 At trial, Paul entered into evidence a list of items he
claimed Pauline had lost. The list included his estimates as to the
value of each item. Pauline denied losing the items and did not
present competing evidence of those items’ value.
¶4 The court rejected Paul’s estimates of the values of the
items because he “did not testify that he had any experience in
evaluation or training in that area.” But the court also found that
Paul had not demonstrated that Pauline was responsible for
losing the items. Specifically, the court explained it was troubled
that, although Paul “voluntarily stored” at the homes of
acquaintances some of the items that later went missing, Paul
nevertheless sought “to hold [Pauline] responsible for the loss of
all of the personal property” on the list. The court also noted that
Paul had never reported the loss of any property to law
enforcement. The court ultimately found Paul’s testimony “not
credible as to why he would voluntarily store his property at
other people’s homes and then blame the resulting loss on
[Pauline].”
¶5 Thus, the record shows that the trial court considered
testimony by both Paul and Pauline before finding that Paul had
failed to demonstrate that Pauline caused the loss of the listed
items. Paul does not challenge that finding. Because the court
rejected Paul’s claim that Pauline was responsible for the loss of
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the items, it is irrelevant whether the court correctly valued
them.1
¶6 Paul also asserts that the court’s “pattern of disbelief”
regarding his testimony and the evidence he proffered “is a clear
abuse of discretion.” But we give great deference to a trial court’s
determinations of credibility “based on the presumption that the
trial judge, having personally observed the quality of the
evidence, the tenor of the proceedings, and the demeanor of the
parties, is in a better position to perceive the subtleties at issue
than we can looking only at the cold record.” See State v.
Calliham, 2002 UT 87, ¶ 20, 57 P.3d 220. Consequently, in “all
actions tried upon the facts without a jury, findings of fact shall
not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility
of the witnesses.” Hale v. Big H Constr. Inc., 2012 UT App 283,
¶ 9, 288 P.3d 1046 (quoting Utah R. Civ. P. 52(a) (2012))
(brackets, ellipses, and internal quotation marks omitted). A
court may well find that several pieces of evidence presented by
a single party are not credible; such a “pattern of disbelief” does
1. Similarly, the court rejected Paul’s claim regarding the value
of a truck. Paul claimed that the truck was worth $1,900 because
he had received an offer to buy it for “$1,000 solely for the
engine.” He also testified that he believed Pauline had “sold it to
someone.” The court found that the only evidence of the truck’s
value was the offer to buy it for $1,000 and consequently fixed its
value at $1,000. But the court then found that there was no
credible evidence “as to what happened to the truck” and
therefore refused to treat it as sold. On appeal, Paul asserts that
the trial court “found [his testimony] not credible because he did
not provide the [Kelley Blue Book] valuation of the truck.”
However, any dispute regarding the valuation of the truck is
immaterial when the court did not find credible the claim that it
had been sold.
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not, standing alone, prove clear error or otherwise constitute
grounds for withdrawing the due regard we owe to the trial
court. And, here, the trial court was not required to believe Paul
simply because he presented more evidence than Pauline or
because Pauline did not directly contradict his proffered
testimony. See, e.g., Anderson v. State Farm Fire & Cas. Co., 583
P.2d 101, 104 (Utah 1978) (“The testimony of a party . . . is not
conclusive, even if it is not contradicted . . . . [The party’s]
testimony is to be given such weight and credibility as the trier
of fact finds reasonable under the circumstances.” (emphasis
added)); Fullmer v. Fullmer, 2015 UT App 60, ¶ 25, 347 P.3d 14(“Determinations regarding the weight to be given to the
testimony of witnesses, including expert witnesses, are within
the province of the finder of fact, and we will not second guess a
court’s decisions about evidentiary weight and credibility if
there is a reasonable basis in the record to support them.”
(brackets, citation, and internal quotation marks omitted)).
¶7 Because the trial court found that Paul failed to prove that
Pauline lost the items, his complaint that the trial court
improperly rejected his valuation of those items is irrelevant.
Even if the trial court had found that Pauline lost the items, Paul
has failed to demonstrate that the court’s credibility
determination was clearly erroneous, and the nature of appellate
review would require us to defer to that credibility
determination. See id.; see also Utah R. Civ. P. 52(a)(4) (“Findings
of fact . . . must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court’s
opportunity to judge the credibility of the witnesses.”); Dahl v.
Dahl, 2015 UT 79, ¶ 121 (same, in the context of a marital
property distribution).
¶8 Paul next contends that the trial court “abused its
discretion when it awarded alimony, mistakenly relying on Dahl
v. Dahl to reject the financial statement figures submitted by
[Pauline] and impute its own on her behalf.” Specifically, Paul
argues that the trial court was bound by Pauline’s testimony, or
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lack thereof, regarding Pauline’s needs and her living expenses
related to her housing costs. Paul asserts that, whereas “Dahl
explicitly states that courts may impute figures [only] when
there is insufficient evidence,” “[t]here is no lack of evidence in
this case.”
¶9 Dahl did not hold, as Paul claims, that imputing an
amount for an alimony factor is improper whenever evidence
pertaining to that factor has been presented. Rather, Dahl
instructs that the court may impute a reasonable amount for an
alimony factor when no credible evidence regarding that factor
has been presented. See Dahl, 2015 UT 79, ¶¶ 115–16 (noting that
“there [was] insufficient evidence of one of the statutory alimony
factors” due to a party’s “failure to provide credible evidence of
her financial need,” and thus that the trial court could impute
figures).2 When a party obviously underestimates (as here) or
overestimates (as is more common) his or her living expenses,
the trial court is not limited to awarding either the reported
amount or nothing. Instead, the dearth of credible evidence
regarding a particular claim simply renders the quantum of
evidence as to that claim insufficient.
¶10 Here, the trial court reasonably rejected Pauline’s estimate
of $400 per month in housing expenses because, “[a]lthough
[Pauline] lives in a trailer on a friend’s property, it is unknown
2. In Dahl, the supreme court ultimately held that the district
court’s failure to impute an amount for Ms. Dahl’s needs was
within its discretion. Dahl v. Dahl, 2015 UT 79, ¶¶ 116–17. While
the district court could have imputed an amount, it was not
required to do so, because it “awarded Ms. Dahl over $1.5
million in marital property” which was “sufficiently large . . . to
support a comfortable standard of living.” Id. ¶ 116.
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how long a person can survive on the good nature of a friend.”3
In other words, the court found that Pauline’s estimate of her
current housing expenses was not relevant to determining her
reasonable housing needs going forward.4 This finding left the
court without any specific evidence of Pauline’s housing needs
that was both credible and relevant. Paul has not claimed, let
alone shown, that the finding was clearly erroneous. See Dahl,
2015 UT 79, ¶ 121; see also Anderson, 583 P.2d at 104. Once the
court determined that there was no evidence that was both
credible and relevant regarding Pauline’s reasonable housing
needs, it was appropriate for the court to impute a reasonable
amount based on other evidence provided by the parties. See
Dahl, 2015 UT 79, ¶ 116. The court found that Paul’s claimed
housing need of $975 was reasonable and thus that “[i]t is
reasonable to impute $975 as a rental payment for [Pauline].”
3. This determination makes conceptual sense. In the aftermath
of a separation, a party may temporarily return to his or her
parents’ home, shelter with friends, or become homeless and
thus incur no actual housing expenses. This does not require a
court to find that the party has no reasonable housing expenses;
rather, the court may consider what constitutes a reasonable
rental or mortgage payment in the relevant area for housing
similar to the housing previously shared by the parties. See Utah
Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (“As a general rule,
the court should look to the standard of living, existing at the
time of separation, in determining alimony[.]”).
4. One of the purposes of alimony is to ensure that “divorcing
spouses both retain sufficient assets to avoid becoming a public
charge.” See Dahl, 2015 UT 79, ¶¶ 25, 111. Here, Pauline’s current
housing expenses were essentially subsidized through the
charity of a member of the public. It was therefore appropriate
for the court to consider Pauline’s reasonable unsubsidized
needs rather than her actual subsidized expenses.
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There was no claim or evidence that Paul’s and Pauline’s
reasonable housing needs differed or were wildly different than
the housing they enjoyed during their marriage.5 We therefore
see no impropriety in the trial court’s decision to impute housing
needs to Pauline in the same amount as Paul had claimed was
reasonable for him.
¶11 A similar example may be found in the court’s overall
findings with respect to the alimony factors. Ultimately, the
court found that the evidence presented by Pauline (to the effect
that her monthly income was $189 and her monthly housing
expense was $400) was not credible relevant evidence of her
reasonable earning capacity and living expenses, and it therefore
imputed figures for both her income and housing ($1,517 and
$975, respectively). Although Pauline’s financial declaration
reported that her only income was $189 per month in food
stamps at the time of trial, the court took into account whether
she could work and what she could reasonably earn. Based on
Pauline’s prior earnings, the court imputed $1,517 per month of
income to her. But if we were to adopt Paul’s reading of Dahl—
that any evidence regarding an alimony factor precludes
imputation by the court—we would be forced to conclude that
the trial court could not have imputed income to Pauline,
because she presented evidence, albeit not credible evidence,
that her income was $189. Dahl, as we read it, does not require
this result.
5. Thus, failing to impute reasonable housing expenses for
Pauline could have indicated that the district court did not
comply with its charge in fashioning an alimony award; i.e., “to
enable the receiving spouse to maintain as nearly as possible the
standard of living enjoyed during the marriage and to prevent
the spouse from becoming a public charge.” See Dahl, 2015 UT
79, ¶ 111 (emphasis, citation, and internal quotation marks
omitted).
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¶12 Paul also claims that Pauline “stated she was not asking
for Alimony” and that “her financial declaration indicated no
need for alimony.” Paul fails to provide citations to the record
for either of these assertions. See Utah R. App. P. 24(a)(9)
(requiring an appellant’s argument to contain “citations to
the . . . parts of the record relied on”). Paul thus fails to refer us
to any of the evidence he argues should have prevented the
court from imputing Pauline’s financial figures. Our review of
the parts of the record to which Paul might be referring indicates
that Pauline rejected “alimony” only until she became aware of
what the word meant. Once the word was explained, Pauline
stated that, “as far as the money, I’m entitled to it. I’m entitled to
something” and that “I just want what’s fair” because “I deserve
it.” And Paul’s assertion that Pauline’s financial declaration
showed no need for alimony is belied by that very declaration:
according to it, Pauline was unemployed, had no savings,
received $189 per month in public assistance, and had monthly
expenses totaling $615. We therefore cannot agree with Paul that
the trial court’s finding that Pauline had unmet needs was
clearly erroneous.
¶13 Paul’s third contention is that the trial court “abused its
discretion when it made conclusions not found in the evidence.”
Specifically, he asserts that the court’s findings that he had been
the “sole source of family income” and that Pauline “had no
access to marital funds during the separation of the parties” are
“patently false.” He describes testimony by both himself and
Pauline, but fails to provide record citations to that testimony or
to provide record citations identifying the parts of the trial
court’s findings with which he takes issue. See Utah R. App. P.
24(a)(9).
¶14 We will not take it upon ourselves to search the record for
testimony that might support Paul’s arguments. See, e.g.,
Wohnoutka v. Kelley, 2014 UT App 154, ¶ 6, 330 P.3d 762 (“An
appellate court should not be asked to scour the record to save
an appeal by remedying the deficiencies of an appellant’s
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brief.”). In any event, even if such testimony exists in the record,
the trial court’s failure to credit it would have been within its
discretion to determine the respective credibility of the parties.
See, e.g., supra ¶ 6. Paul has done nothing to show that
disbelieving any such evidence would have been clearly
erroneous or an abuse of the court’s discretion. We reiterate that,
following a bench trial, the court’s factual findings will be
sustained on appeal unless the appellant demonstrates that they
are “so lacking in support as to be against the clear weight of the
evidence,” see 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 69, 99
P.3d 801 (citation and internal quotation marks omitted); this
deference naturally extends to determinations of credibility.
¶15 We conclude that Paul has not demonstrated clear error in
the trial court’s findings. Accordingly, we affirm the trial court’s
judgment.
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