Miner v. Miner ( 2021 )

2021 UT App 77THE UTAH COURT OF APPEALS
LISA P. MINER,
Appellee,
v.
JOHN E. MINER,
Appellant.
Opinion
No. 20200098-CA
Filed July 15, 2021
Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 174500373
Troy L. Booher, Julie J. Nelson, and Rodney R.
Parker, Attorneys for Appellant
N. Adam Caldwell, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred.1
HARRIS, Judge:
¶1 John E. Miner appeals several aspects of a comprehensive
set of rulings issued following a four-day divorce trial and post-
trial proceedings; his chief complaints have to do with the trial
court’s award of alimony to his ex-wife, Lisa P. Miner. We affirm
the court’s orders in many respects, but reverse certain parts of
the alimony award and the court’s attorney fees determination,
and remand for further proceedings.
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
Miner v. Miner
BACKGROUND
¶2 John and Lisa2 married in 1997, while John was in medical
school. During the course of the marriage, John developed a
highly successful anesthesiology practice, with his income
generally rising over time; in the marriage’s final years, the
family earned, from all income sources, just shy of $1 million per
year. John and Lisa have four children together, three of whom
were minors at the time of trial and two of whom are still minors
today.
¶3 The Miner family, and Lisa in particular, are equine
enthusiasts and for years have owned horses. In 2007, at the total
price of $2.6 million, the family completed construction of and
moved to a property they colloquially refer to as “the Farm.”
Situated on twenty acres of land, the Farm included both a 7,000-
square-foot house and extensive equestrian facilities, including
an “eight-stall barn” that was built with the intention—at least in
part—to allow the family to “make money” from “board[ing]
horses.” Maintenance of the Farm was expensive; mortgage
payments alone were in excess of $16,000 per month, and it cost
another $3,000 per month, on average, to cover utilities and
other maintenance costs. John described the Farm as “a
wonderful place” that “provided a lot of joy for [the] family,”
but acknowledged that “it was over-the-top expensive.”
¶4 In addition to their equestrian activities, members of the
Miner family also enjoy other expensive hobbies. For instance,
three of the children, as well as John, “are avid tennis players”;
2. In this opinion, we follow our standard practice of referring to
the parties by their first names when they “share the same
surname, . . . with no disrespect intended by the apparent
informality.” See, e.g., Brown v. Brown, 2020 UT App 146, ¶ 1 n.1,
476 P.3d 554.
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two of the children—the ones that are currently still minors—are
particularly active in the sport, and have “aspirations to play . . .
in college.” As a result, the cadence of the family’s schedule
often revolves around the children’s tennis activities, including
not only practices with expensive private coaches but also
frequent tournaments, many of which involve travel to other
cities. And while the family’s travels often involve tennis—
including an expensive annual “pilgrimage” to a professional
tournament in California—they sometimes travel for pleasure as
well, including trips to Europe and other international
destinations.
¶5 In order to meet the “exorbitant” costs of maintaining the
family’s lifestyle, during the marriage John maintained an
aggressive and “erratic” work schedule, sometimes working
sixty to ninety hours in a week. Although it is not unusual for
anesthesiologists to work odd shifts with long hours, John chose
to work more than any other partner in his practice and often
volunteered for procedures that paid at a higher hourly rate,
making him “the top wage earner” in his practice for twelve
years running. From his medical practice, John earned on
average about $900,000 per year in the last three years of the
marriage. Anesthesiologists are “paid based on time and the
type of case,” meaning that, in large part, John’s earnings were
“based on the amount of time that [he] put in.” John had
significant involvement with the children when he was at
home—for instance, he helped with homework and coached
their sports teams—but due in part to John’s heavy work
schedule, Lisa managed the lion’s share of the day-to-day
childcare duties.
¶6 Lisa has a bachelor’s degree in exercise science and a
master’s degree in athletic training, but she has never worked as
an athletic trainer or exercise specialist, choosing instead to
devote her time to raising the parties’ children. After the family
finished building the Farm, Lisa began to earn an income as well,
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mostly by boarding horses and offering lessons as a dressage
and horse riding instructor. In the last few years of the marriage,
her average annual revenue from teaching lessons and boarding
horses was approximately $32,000.
¶7 In April 2017, Lisa filed for divorce, citing (among other
things) irreconcilable differences. Lisa sought primary physical
custody of the children, child support, alimony, and equitable
division of the marital property. Some months later, the trial
court entered an initial bifurcated divorce decree and two sets of
temporary orders. Under those orders, Lisa and John were
awarded joint physical custody, with Lisa the primary physical
custodian, and with John exercising parent-time pursuant to
section 30-3-35.1 of the Utah Code. John was to pay the parties’
monthly bills, and Lisa was allocated $3,000 per month for other
expenses. The court also ordered the parties to sell the Farm,
which they did.
¶8 Soon thereafter, the case proceeded to a bench trial, which
was held during four trial days spaced out over several months
in mid-2018. During the trial, the court heard testimony from
Lisa and John, as well as several other individuals, most notably
a forensic accountant (Accountant)—who testified about a report
(the Report) he had prepared regarding “marital income, marital
expenditures,” and valuation of marital property, including
valuation of John’s medical practice—and Lisa’s brother
(Brother), a fellow anesthesiologist in John’s medical practice,
who testified about the nature of the medical practice and its
typical business expenses. After trial, the court issued a lengthy
oral ruling stating its findings and conclusions; the ruling was
later memorialized into written findings and a supplemental
decree of divorce that were entered on December 31, 2018.
¶9 We will discuss some of the particulars of the court’s
ruling in more detail below, on an issue-by-issue basis. But in
broad strokes, the court ruled in relevant part as follows: (a) the
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parties were “awarded joint legal and physical custody of the[]
minor children,” with Lisa the primary physical custodian, and
with John awarded six overnights in each fourteen-day period,
although the court stated that equal parent-time should
ultimately “be the goal”; (b) John’s income, for purposes of the
child support and alimony calculations, was set at $75,000 per
month; (c) Lisa’s income, for those same purposes, was set at
$1,500 per month; (d) based on those calculations, John was
ordered to pay monthly alimony to Lisa in the amount of $18,690
for twenty years, unless terminated earlier “upon the death of
either party, or upon [Lisa’s] remarriage or cohabitation”; and (e)
each party should pay his or her own attorney fees.
¶10 After the ruling, both parties filed post-trial motions and,
following two hearings on these motions, the court made four
additional rulings pertinent to our review: (i) it reiterated the
length and duration of its original alimony award, declining to
grant John’s post-trial request to shorten the alimony period and
craft a rehabilitative alimony award; (ii) it applied its alimony
award retroactively to cover the months when its temporary
orders were in effect, and determined that Lisa was entitled to
$66,072.80 in retroactive alimony; (iii) it reiterated its order that
each party pay his or her own attorney fees, despite John’s post-
trial argument that he had, in effect, paid for a large portion of
Lisa’s attorney fees during the proceedings and had not been
credited for doing so; and (iv) it altered its previous parent-time
order to impose an equal parenting arrangement, wherein each
party would have the children for seven overnights during each
fourteen-day period.
ISSUES AND STANDARDS OF REVIEW
¶11 John now appeals the trial court’s rulings, and presents
two principal issues for our review. First, he challenges several
aspects of the trial court’s alimony award. Where such
challenges are preserved, we review all aspects of the trial
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court’s “alimony determination for an abuse of discretion and
will not disturb its ruling on alimony as long as the court
exercises its discretion within the bounds and under the
standards [our supreme court has] set” and so long as the trial
court “has supported its decision with adequate findings and
conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84, 459 P.3d 276(quotation simplified). However, John acknowledges that some
of his challenges to the court’s alimony award are unpreserved,
including some of his challenges to certain line items in the
court’s calculation of Lisa’s needs. At John’s request, we will
review these unpreserved challenges for plain error. See
Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 37–39, 402 P.3d
219. “To demonstrate plain error, [an appellant] must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” Id. ¶ 32 (quotation
simplified).3
¶12 Second, John challenges the court’s attorney fees ruling,
which we review for abuse of discretion. See Roberts v. Roberts,
2014 UT App 211, ¶¶ 7, 27, 335 P.3d 378 (“In divorce cases, both
the decision to award attorney fees and the amount of such fees
3. Our supreme court has recognized the “ongoing debate about
the propriety of civil plain error review,” but has not yet taken
the opportunity to resolve that debate for purposes of Utah law.
See Utah Stream Access Coal. v. Orange St. Dev., 2017 UT 82, ¶ 14
n.2, 416 P.3d 553. We decline to engage in that debate here,
chiefly because Lisa does not ask us to—indeed, both parties
appear to assume the propriety of plain error review in this case.
Utah appellate courts have applied plain error review in civil
cases in which neither party challenges its application, see, e.g.,
Hill v. Estate of Allred, 2009 UT 28, ¶¶ 30–31, 216 P.3d 929;
Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 39, 402 P.3d 219, and
we do so here without opining on the propriety of that review.
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are within the trial court’s sound discretion.” (quotation
simplified)).4
ANALYSIS
¶13 We begin with John’s multifaceted challenge to the court’s
alimony award, analyzing each aspect of his challenge in turn.
We then address John’s challenge to the court’s attorney fees
order.
I. Alimony
¶14 Under Utah law, “the primary purposes of alimony . . .
are: (1) to get the parties as close as possible to the same
standard of living that existed during the marriage; (2) to
equalize the standards of living of each party; and (3) to prevent
the recipient spouse from becoming a public charge.” See Rule v.
Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (quotation simplified).
“Alimony is not limited to providing for only basic needs but
should be fashioned in consideration of the recipient spouse’s
station in life in light of the parties’ customary or proper status
or circumstances, with the goal being an alimony award
calculated to approximate the parties’ standard of living during
the marriage as closely as possible.” Id. (quotation simplified).
During their marriage, John and Lisa enjoyed a very comfortable
lifestyle and high standard of living, and to allow Lisa to
participate in that lifestyle following the divorce, the court
ordered John to pay Lisa $18,690 per month in alimony for a
twenty-year period.
4. John also argues that the trial court erred by dividing the
assets in the parties’ joint checking account by using a balance
from March 2018 rather than September 2018. Because this issue
resolves itself in light of some of our other rulings, we discuss it
only briefly, see infra note 11.
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¶15 John advances a three-part challenge to the alimony
award. First, he takes issue with the amount of that award, and
contends that the court erred in its calculation of Lisa’s
demonstrated needs, Lisa’s potential income, and John’s
potential income. Second, he challenges the duration of the
award, asserting that the court should not have awarded Lisa
alimony for twenty years—the length of the marriage—but
instead for a shorter “rehabilitative” period. Finally, John takes
issue with the court’s decision to make the alimony award
retroactive to cover the temporary orders period. We address
each of these challenges, in turn.
A. Amount of Alimony
¶16 The appropriate amount of any alimony award is
governed by a multi-factor inquiry, first articulated in Jones v.
Jones, 700 P.2d 1072 (Utah 1985). See id. at 1075. Now expanded
and codified in statute, see Utah Code Ann. § 30-3-5(8)(a)(i)–(vii)
(LexisNexis 2019), the first three factors—the so-called “Jones
factors”—require a court to examine “(i) the financial condition
and needs of the recipient spouse; (ii) the recipient’s earning
capacity or ability to produce income; [and] (iii) the ability of the
payor spouse to provide support,” Dahl v. Dahl, 2015 UT 79,
¶¶ 94–95, 459 P.3d 276 (quotation simplified).
¶17 “A party seeking alimony bears the burden of
demonstrating to the court that the Jones factors support an
award of alimony.” Id. ¶ 95. “To satisfy this burden, a party
seeking alimony must provide the court with a credible financial
declaration and financial documentation to demonstrate that the
Jones factors support an award of alimony.” Id. ¶ 96. “And in all
cases” the trial court “must support its [alimony] determinations
with adequate findings,” Rule, 2017 UT App 137, ¶ 22, “on all
material issues,” Howell v. Howell, 806 P.2d 1209, 1213 (Utah Ct.
App. 1991) (quotation simplified). “Failure to do so constitutes
reversible error, unless pertinent facts in the record are clear,
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uncontroverted, and capable of supporting only a finding in
favor of the judgment.” Id. (quotation simplified).
¶18 “In many cases, the level of expenses and the standard of
living of the separated parties at the time of trial will not be
representative of the parties’ customary or proper status or
circumstances” during the marriage. See Rule, 2017 UT App 137,
¶ 16 (quotation simplified). “Our precedent thus reflects and
reinforces the general rule that alimony should be based upon
the standard of living the parties established during the
marriage rather than the standard of living at the time of trial.”
Id. ¶ 15. “We have therefore cautioned against determining
alimony based upon actual expenses at the time of trial because
. . . a party’s current, actual expenses may be necessarily lower
than needed to maintain an appropriate standard of living for
various reasons, including, possibly, lack of income.” Id. ¶ 16(quotation simplified); see also Utah Code Ann. § 30-3-5(8)(e)
(“As a general rule, the court should look to the standard of
living, existing at the time of separation, in determining alimony
. . . .”). However, in appropriate situations with regard to certain
line items, a court may apply “equitable principles,” in its
discretion, to “base alimony on the standard of living that
existed at the time of trial.” See Utah Code Ann. § 30-3-5(8)(e); see
also Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 21, 437
P.3d 411 (“[A] trial court may, in its discretion, assess some of
the parties’ expenses as of the time of separation, but
nevertheless assess other expenses as of the time of trial.”).
¶19 With these principles in mind, we turn to John’s challenge
to the amount of the alimony award, which also breaks down
into three parts: John challenges the court’s computations of
Lisa’s needs, Lisa’s income and earning capacity, and John’s
income and earning capacity. We address John’s arguments in
that order.
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1. Lisa’s Needs
¶20 As part of its overarching ruling awarding Lisa monthly
alimony of $18,690, the court determined that Lisa’s reasonable
monthly expenses, measured with the marital standard of living
in mind, were $26,000. That figure, in turn, was the sum of forty-
five separate line-item determinations, most of which John does
not challenge. However, John raises eleven separate criticisms of
the court’s computation of Lisa’s expenses, asserting that the
court’s awards in certain categories “were unsupported by any
documentation or corroborating evidence,” and that other
awards exceeded what was supported in the evidence. We
address each of these challenges, but first pause to describe, by
way of background, how Lisa developed many of the expense
computations she included in her financial declarations and
about which she testified at trial.5
¶21 In early 2018—after Lisa had filed for divorce but before
trial—John and Lisa jointly hired Accountant to create the
Report, in which he itemized the parties’ past and future
estimated monthly expenses, and valued their marital property,
including John’s business. In describing the process of preparing
the Report, Lisa testified that she and Accountant gathered
credit card statements, bank statements, and “everything we
could possibly find” for “every month in 2015 and ’16.” Once
they had the documents, they “spent several hours over many
days” going over “every single transaction and expense for 2015
and ’16” and “placing them into categories.” The Report was
admitted into evidence, and served as the primary support for
the expense line items on Lisa’s financial declarations. In
5. Our analysis is complicated by the fact that—as mentioned,
supra ¶ 11—some of John’s challenges to particular line items are
preserved and some are not, and we note at the outset of each
discussion whether that particular challenge was preserved.
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addition, both John and Lisa testified as to different aspects of
their marital standard of living, and Lisa also testified
extensively about several of the line items in her expense
requests.
a. Tennis Expenses
¶22 The trial court allocated $1,000 per month to Lisa for
tennis-related expenses, an allocation John asserts was
“unsupported by any documentation or corroborating
evidence.” This challenge is preserved, so we review for abuse of
discretion.
¶23 John correctly points out that Lisa did not include a
tennis-related line item in her financial declarations, nor was it
included in the Report. However, in her closing argument
memorandum, Lisa requested $1,000 per month to be used for
“Tennis Coaching/Tennis Tournaments & Travel,” and the trial
court granted this request in full, without elaboration in its
written findings as to what the funds were intended to cover.
Yet it is clear from Lisa’s testimony and evidence for other line
items (which went unchallenged by John) that this tennis-
specific line item was not intended to include money for Lisa to
buy the children tennis-related clothing, or to pay for gasoline
and other expenses related to transporting the children to tennis
activities.
¶24 John challenged this line item in a post-trial motion,
asserting that because he had “agreed to pay for all tennis-
related items and the court awarded him the money to do so,”
Lisa had no need for funds to be allocated toward tennis
expenses. In the back-and-forth associated with that motion, it
became clear that the line item was meant to include expenses
for tennis camps, lessons, rackets, and other tennis-related costs;
Lisa acknowledged that John was paying most of these expenses,
but she argued that the court should allow her to have a budget
for some of them—and not run them all through John’s side of
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the finances—so that she would not end up “stuck at home
while [John] is . . . the only one that gets to . . . participate in
these [tennis] activities that” the family had “historically all
shared and enjoyed in.” The trial court was persuaded by that
argument, at one point stating that it was awarding this
particular line item to Lisa so that she—like John—could have
some ability to spend money on “tennis for the kids,” and
stating, by way of example, that Lisa could use the money to
enroll the children in a particular tennis camp, even if John did
not agree to it.
¶25 There is no dispute that the costs associated with the
children’s tennis activities—even excluding amounts for tennis
clothing, and gasoline for transportation, which are included in
other categories—were a “family expense,” and that the total
costs amounted to, on average, somewhere around $2,500 per
month. We perceive no abuse of the court’s discretion in
ordering that some of these expenses be routed through John’s
side of the finances, and some through Lisa’s, in order to give
both parties some measure of control over how those funds are
spent. And given that the family’s tennis expenses totaled some
$2,500 per month, the court’s choice of $1,000 for this line item
was—contrary to John’s assertion—well within the range
supported by the evidence. We therefore reject John’s challenge
to the tennis expense line item.
b. Entertainment
¶26 The trial court allocated $625 per month to Lisa for
“entertainment,” which was exactly half of what Lisa requested.
John challenges this line item, asserting that Lisa failed to
provide any evidence supporting it. This challenge is preserved,
so we review for abuse of discretion.
¶27 When asked on direct examination what was included in
this category, Lisa indicated that she was unsure, but that even
her requested amount of $1,250 was “less than what [the family
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had] historically spent” on entertainment. On cross examination,
she was not able to cite any specific examples of what she
intended to include in that category, but testified that she and
Accountant had derived the number by going through the credit
card statements and that “every single thing that was
entertainment, we put in there.” John asserts that this evidence is
insufficient, comparing this situation to the one presented in
Dahl v. Dahl, 2015 UT 79, 459 P.3d 276, in which our supreme
court clarified that the recipient spouse needs, at minimum, some
evidence of financial need beyond merely “unsubstantiated
testimony” regarding marital expenses. See id. ¶¶ 108–09
(explaining that the petitioner did not meet her burden of
showing financial need because “[s]he provided no financial
declaration, no supporting financial documentation, and no
expert testimony”).
¶28 We take John’s point that Lisa’s trial testimony about this
line item was not as specific as it could have been. But in our
view, this situation is a far cry from Dahl. Here, Lisa’s
entertainment expense was supported by more than
unsubstantiated testimony. As Lisa explained, the line item was
created during the thorough review she and Accountant made of
the family’s financial documents, and the $1,250 amount appears
as a line item in the Report. And our examination of some of the
credit card statements admitted into evidence reveals that John
and Lisa each were spending several hundred dollars every
month on things that certainly appear to be entertainment-
related. Indeed, John requested as much as $1,000 per month in
entertainment expenses. We also note that the trial court
penalized Lisa for her lack of specificity by cutting her request in
half.
¶29 In the end, we consider the “entertainment” line item to
be supported by sufficient evidence, and we perceive no abuse
of discretion in the trial court’s handling of the matter. To the
contrary, we agree with its assessment that an entertainment
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budget for Lisa of $625 per month was not “out of line,”
considering that the parties “liv[ed] on almost a million dollars a
year” during the marriage.
c. Legal and Accounting Expenses
¶30 The trial court allocated $200 per month to Lisa for legal
and accounting expenses, cutting Lisa’s request down from
$333.33. John challenges this line item, again asserting that Lisa
failed to provide any evidence supporting the expenses. This
challenge was preserved, so we review for abuse of discretion.
¶31 Lisa explained at trial that her request for $333 per month
in legal and accounting costs was based on Accountant’s review
of the parties’ expenses, and was intended to cover her costs of
“[h]aving taxes prepared, things like that,” and for non-divorce-
related legal fees for things that come up from time to time, as
had happened occasionally during the parties’ marriage. The
line item appeared in the Report. John protests that this amount
is not intended to cover any of the attorney fees incurred in the
divorce case—indeed, those are discussed separately in this
opinion, see infra part II—and that Lisa presented no evidence
that she would have any legal expenses after the divorce was
over. The trial court appeared to take John’s point about attorney
fees, and on that basis cut Lisa’s allocation from $333.33 to $200,
but still found that Lisa needed some money for legal fees and
accounting fees combined, offering its view that Lisa “was going
to need some accounting help” that consisted of “more than
[simply] taking [her tax documents] to H&R Block,” and that
“$200 a month is fair” for someone in that situation to pay for
accounting services.
¶32 John contends that this amount is too high, but he
supports that contention only with a bare assertion that tax
preparation costs for many people typically amount to only “a
couple hundred dollars per year, not per month.” John makes no
effort to engage with the trial court’s viewpoint that, given the
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nature of these parties’ finances, and the contested post-divorce
situation Lisa would be in, Lisa would need more legal and
accounting services than an average person might. Under these
circumstances, where the line item amount was supported by
Accountant’s Report, as well as by Lisa’s testimony, there was
more than mere unsubstantiated testimony to support Lisa’s
request. We perceive no abuse of discretion in the trial court’s
determination that Lisa would need $200 per month for legal
and accounting services in the future.
d. Out-of-Pocket Health Expenses
¶33 The court allocated $727.58 per month to Lisa for out-of-
pocket health-related expenses (as distinct from health insurance
premiums). John challenges this line item, again asserting that
Lisa failed to provide any evidence supporting it. This challenge
was preserved, so we review for abuse of discretion.
¶34 For an expense category entitled “Other Health, Out of
Pocket, Uninsured, Deductible,” Lisa requested $8,731 annually
(or $727.58 per month). When asked about this category during
trial, Lisa testified that it was intended to include, among other
things, money for “allergy shots” that she and two of the
children receive every six weeks (which cost about $1,500
annually), and money for the children to attend counseling
(which apparently costs $120 per child per session). Indeed,
Lisa’s requested figure is derived directly from the Report, in
which Accountant concluded that the parties spent $17,462
annually on “Other Health” costs, apart from insurance
premiums, and that Lisa’s share of these expenses was $8,731 per
year, or $727.58 per month. Based on this evidence, the trial
court granted Lisa’s request, allocating her $727.58 per month for
these expenses.
¶35 John asserts that the trial court’s allocation is unsupported
by evidence, claiming that the children did not really go to
counseling that often and that, in any event, the children’s health
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expenses would phase out over time and therefore should not be
included in the alimony calculation. John’s objection is
unpersuasive, however, where the trial court’s award is based—
to the penny—on the figures generated by Accountant, which in
turn were derived from the parties’ expenses during the
marriage. In this situation, the court’s allocation is supported by
ample evidence, and the court did not abuse its discretion in
allocating $727.58 to Lisa in this category.
e. Car Payment
¶36 The trial court allocated $833 per month to Lisa for
“Existing/Replacement Vehicle Purchase.” John challenges this
award, asserting that it exceeds both the amount that Lisa
originally requested and the amount supported in the evidence.
This challenge is preserved, so we review for abuse of discretion.
¶37 In her financial declaration, Lisa listed $600 as an expense
item for “Vehicle – Future Replacement.” But Accountant did
not include any such line item in the Report; instead, the Report
indicates loan payments for two specific vehicles, and
Accountant testified that he assumed, for purposes of preparing
the Report, that John was making both of those payments.
However, he also testified that, if Lisa was driving one of those
vehicles, then it would make sense to move the payment
associated with that vehicle to Lisa’s column. Lisa was in fact
driving one of those vehicles and, according to the Report, the
monthly payment on that vehicle was $809. By way of
comparison, the monthly payment on the vehicle John was
driving was $890, and—as discussed below, infra part I.A.3.b—
the court found that John should be allocated $833 for a car
payment expense.
¶38 At trial, Lisa was asked about the discrepancy between
the monthly payment on the car she was driving ($809) and the
monthly car expense she was asking for in her financial
declaration ($600), and she pointed out that the amount she was
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asking for was “considerably less” than what she had been
spending. Lisa even indicated that she was willing to sell that
vehicle and “replac[e] [it] with something with a lower
payment,” and that this was the reason why she asked for only
$600 for a future car payment. But despite these concessions,
Lisa—in her written closing argument—requested $833 for a car
payment, and the trial court ultimately allocated her that
amount.
¶39 John assails the trial court’s allocation for Lisa’s car
payment, asserting that no evidence supports the $833
allocation, and that the court abused its discretion by not
selecting $600 as the appropriate amount for this line item. We
disagree. That $833 figure is the same amount the court allocated
to John, and is only $24 more than the amount that the family
had been spending on Lisa’s car payment during the marriage.
While the trial court, with appropriate findings, could have
awarded a lesser amount in line with Lisa’s $600 request, see
Degao Xu v. Hongguang Zhao, 2018 UT App 189, ¶ 21, 437 P.3d
411 (noting that courts have the discretion, for certain line items,
to assess certain expenses as of the time of trial, rather than as of
the date of separation), it is the “general rule” that “the court
should look to the standard of living, existing at the time of
separation, in determining alimony,” see Utah Code Ann. § 30-3-
5(8)(e) (LexisNexis 2019). We perceive no abuse of discretion in
either the court’s general decision to base Lisa’s car payment
allowance on the parties’ expenses during the marriage, or in the
court’s specific decision to allocate $833 for that purpose—the
same figure it allocated to John, and within the range ($809 to
$890) that the parties had spent on each of their car payments
during the marriage.
f. Student Loan Payments
¶40 The trial court allocated $134.75 per month to Lisa for
student loan payments. John challenges this line item, asserting
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that this amount exceeds what the evidence supports. This
particular challenge is unpreserved, so we review for plain error.
¶41 In her financial declaration, Lisa requested an allocation
of $135 per month to make payments on her outstanding student
loan obligations. In his Report, Accountant determined that Lisa
had $1,617 in annual student loan expenses, an amount that,
paid monthly, equals $134.75. The trial court awarded Lisa the
amount reflected in the Report.
¶42 John acknowledges that Lisa has legitimate student loan
debt. But he contends that the total debt is less than $7,000, and
at $135 per month can be paid off in about four years. John
calculates that, over the full twenty-year alimony period, this
line item will result in him paying Lisa more than $32,000, and
will require him to make payments for Lisa’s student loans long
after they have been paid in full. John therefore contends that the
court plainly erred by including any amount for student loan
debt in the long-term alimony computation. We disagree.
¶43 In this situation, the trial court did not commit plain error
by including a line item for an uncontested student loan
payment. As noted above, one of the purposes of an alimony
award is to “approximate the parties’ standard of living during
the marriage as closely as possible.” See Rule v. Rule, 2017 UT
App 137, ¶ 14, 402 P.3d 153 (quotation simplified). In assessing
alimony, the trial court was tasked with looking at Lisa’s needs
and expenses “in light of the marital standard of living.” Id. ¶ 15.
During the marriage, and at the time of trial, Lisa had a student
loan expense, and we do not consider it plain error for the court
to allocate an amount for such an expense, even if it may not be
certain that the expense will be present for the entire twenty-
year alimony period. “Prospective changes to alimony are
disfavored,” although they “are appropriate” when “the future
event is certain to occur within a known time frame.” See
Richardson v. Richardson, 2008 UT 57, ¶ 10, 201 P.3d 942. Given
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the relative certainty of the expiration of Lisa’s student loan
debt, it would have been within the court’s discretion to order a
prospective change—had John asked for one—in John’s alimony
obligation in four years, when those loans will be paid off. But
we cannot say that the court plainly erred by declining to sua
sponte make such an order in this case.
g. Farm and Horse Expenses
¶44 The trial court allocated $5,000 per month to Lisa for
“Farm/Horse Expenses.” This is the largest single expense
category in the court’s alimony award, and John challenges it on
the basis that the amount exceeds what the evidence supports.
This challenge is preserved, so we review for abuse of discretion.
¶45 In her financial declaration, Lisa asked for an allocation of
$5,000 for “Horse care (food, boarding, veterinarian,
equipment).” Lisa owned five horses during the final years of
the marriage, although one horse died prior to trial, leaving Lisa
with four horses at the time of trial. Accountant computed Lisa’s
historical expenses related to horse care and upkeep to be nearly
$90,000 annually, but given that the family had been ordered to
sell the Farm, Lisa recognized that her horse operations would
not proceed in exactly the same manner moving forward. In
light of the changed circumstances, Lisa estimated that her horse
expenses, in a post-Farm world, would be $60,000 annually, or
$5,000 per month. Although Accountant had solid figures to
support the higher historical expense amount, he acknowledged
on cross examination that the lower $60,000 figure was “Lisa’s
estimate,” based on “historical expenses, [of] what she planned
to do in the future, [and] kind of taking an amount per horse and
dividing that out.” He asserted that this was his and Lisa’s “best
shot at a reasonable estimate.”
¶46 Lisa provided a document that gave a “breakdown” of
estimated prices for numerous horse-related expenses, which
was entered into evidence for “illustrative purposes.” According
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to Lisa’s estimates, her horse care and maintenance expenses
would, in the future, range from $4,691.25 to $5,241.25 per
month. During trial, Lisa testified in detail about several of these
estimated costs, including: boarding costs; hay and other feed;
hoof care; lessons for Lisa to continue training the horses;
vaccinations; preventive dental care; supplements, vitamins, and
prescription medications; money that would allow her to have
“wiggle room” for colic and other ailments that might come up;
and “bridal bits, saddle bags, . . . [and other] horse-related
equipment that need[s] to be replaced every so often.”
¶47 The trial court recognized that John vigorously disputed
Lisa’s requested amount for horse care. But “after some careful
analysis and looking at what the evidence was,” the court
ultimately found that, although it was “expensive to have
horses,” Lisa had owned horses “for 20 years” and opined that
she should not be required to cease her equestrian pursuits
merely because she was divorced. As for the amount of the costs,
the court found that “$5,000 a month is needed,” although it did
not make any specific finding about the number of horses
(whether four, five, or some other number) that Lisa would be
expected to have.
¶48 John assails the allocation for horse care expenses, raising
two specific challenges. First, he contends that Lisa did not
produce sufficient documentation to support the $5,000 monthly
figure. We disagree. The reason no historical documentation was
available to support that exact figure was because the historical
expenses, incurred while the family lived at the Farm, were
much higher. Lisa acknowledged that the post-Farm landscape
would look different, and that it would not make sense for her to
be allocated the same amount for horse care in the future as the
parties had spent in the past; accordingly, Lisa attempted to
estimate what the new (and reduced) future expenses would be
based on extrapolation from the higher historical expenses.
Those estimates were supported not only by Lisa’s trial
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testimony, but also by a “breakdown” document setting forth
each estimated expense. While expenses, for alimony purposes,
are usually calculated based on historical data taking into
account the parties’ standard of living during the marriage, see
Rule, 2017 UT App 137, ¶ 15, in certain instances parties may
acknowledge changed circumstances, and attempt to estimate
expenses moving forward, cf. Utah Code Ann. § 30-3-5(8)(e)
(LexisNexis 2019) (stating that, in appropriate situations with
regard to certain line items, a court may apply “equitable
principles,” in its discretion, to “base alimony on the standard of
living that existed at the time of trial”). Lisa and the court
properly engaged in that exercise here, coming up with a
reasonable estimate for future horse care expenses that was
significantly less than the historical amount.
¶49 Second, John asserts that the $5,000 amount was
calculated based on five horses, and contends that this amount is
too high in view of the fact that one of the horses died prior to
trial, and that only two of the surviving horses were Lisa’s
“personal horses” (with the other two apparently sometimes
used to produce income through lessons). But even if the court
based its calculations on an assumption that Lisa had five horses,
we see no abuse of discretion there. Lisa had at least five horses
during the marriage, and John offers no good reason why the
court could not have assumed, based on the standard of living
enjoyed during the marriage, that Lisa would be rightfully able
to replace the horse that died. And any income from the horses
should be taken into account during consideration of the second
Jones factor—Lisa’s ability to earn income—and not during
consideration of the expenses associated with keeping the
horses.
¶50 Thus, we perceive no abuse of discretion in the trial
court’s allocation of $5,000 per month to Lisa for horse care and
maintenance.
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h. Mortgage and House-Related Expenses
¶51 The trial court allocated $3,500 per month to Lisa for a
mortgage payment. The court’s calculation assumed that Lisa
would purchase a house worth approximately $750,000, and
would make a down payment of approximately $150,000. John
does not dispute that a $3,500 monthly payment is an
appropriate allocation for a $750,000 house, but he nevertheless
challenges this line item, asserting that, following the court’s
equitable distribution of marital property, “neither party is left
with $150,000 for a down payment,” and as a result “Lisa will
not be able to afford a $750,000 home.” This challenge was not
preserved, so we review for plain error.
¶52 As noted, during the marriage the parties lived at the
Farm, a $2.6 million property complete with equestrian facilities.
The court and the parties acknowledged that neither John nor
Lisa would be able to live in that kind of property following the
divorce; indeed, the court recognized that John had made a
“voluntary choice to downsize” into “a modest, . . . $345,000
home.” But the court did not deem it necessary to require Lisa to
make that exact same choice, instead finding it appropriate and
equitable for Lisa to have the ability to acquire a $750,000
property. The court offered its viewpoint that, because Lisa “had
a horse property before, . . . she should be able to continue that
lifestyle, if possible.” And the court ultimately “agree[d] that to
get a horse property, she would need something . . . in the value
of $750,000.” It therefore granted her request for $3,500 per
month in mortgage expenses.
¶53 In challenging the court’s allocation for this line item,
John does not assert that a $750,000 house is out of line for Lisa,
taking into account the parties’ marital standard of living. Nor
does John challenge $3,500 as being an inappropriate amount for
a mortgage payment on a $750,000 house. Instead, he focuses his
energies on the assertion that Lisa will have only $100,000—and
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not $150,000—for a down payment, and reasons therefrom that,
without a $150,000 down payment, she will not be able to afford
a $750,000 house, and therefore concludes that Lisa’s actual
mortgage payment will be lower than $3,500 per month. But
John does not cite any evidence in the record supporting the
notion that Lisa will not be able to purchase a $750,000 house
with a $100,000 down payment. Under these circumstances, we
cannot conclude that the court committed plain error in
allocating $3,500 to Lisa for a monthly mortgage payment.6
i. Parenting Expenses
¶54 John next challenges the amounts the court allocated to
Lisa for food and other household expenses, pointing out that
these allocations were based on the assumption that Lisa would
have the minor children in her care for eight overnights during
each fourteen-day period, and asserting that the court should
have adjusted those line items after it changed the parties’
parent-time arrangement post-trial to a true 50/50 split. This
argument was preserved, so we review for abuse of discretion.
¶55 John asserts that several of Lisa’s expense allocations were
calculated under the assumption that she would have more
parent-time than he would; by way of example, he points out
that Lisa’s food allocation is “2.5 times larger” than his, and that
her “clothing budget [is] twice as large.” John brought this issue
6. John also argues, in passing, that the allocations for “taxes,
homeowners insurance, utilities and other home-related
expenses” are also incorrect because those allocations are
premised on Lisa living in a $750,000 house. However, because
the court did not plainly err in making the underlying
assumption that Lisa should be able to live in a $750,000 house,
John’s challenges to these other house-related line items fail for
the same reason that his mortgage payment challenge fails.
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to the trial court’s attention in a post-trial motion, but the court
did not grapple with John’s argument that some of Lisa’s line
items might need to be reduced in light of the post-trial parent-
time adjustment. Similarly, John raises this issue in his appellate
brief, but Lisa provides no argument in response.
¶56 Given that John’s argument makes intuitive sense—Lisa
might need slightly less for food and other household expenses
under a 7/7 parent-time arrangement than she would under an
8/6 arrangement—and given that neither the trial court nor Lisa
has endeavored to explain why John’s argument is wrong, we
credit John’s argument and remand this issue to the trial court
for adjustment, or at least for an explanation as to why no such
adjustment is necessary.
j. Retirement Savings and Asserted Mathematical Error
¶57 Next, John asserts that the trial court made a
“mathematical error” in adding the various line-item allocations
for Lisa’s expenses. In particular, John asserts that the individual
line-items total $25,512.13, yet the trial court found that Lisa had
$26,000 in monthly expenses. Thus, John asserts that the court’s
summed figure is approximately $500 too high. Lisa counters
that there is no mathematical error but, instead, opines that the
discrepancy results from a “typo” in the court’s listing of her
allocation for “Voluntary Retirement Savings.” In Lisa’s view,
the court listed $2,000 for that line item in the table in its written
ruling, but really intended to award $2,500; Lisa maintains that,
when the correct number is used in the tally, the total is
$26,012.13.7 John did not preserve this challenge, and we
therefore review only for plain error.
7. The other $12.13 difference is attributable to the trial court
“rounding . . . down” the technical total of $26,012.13—including
(continued…)
20200098-CA 24 2021 UT App 77Miner v. Miner
¶58 In her financial declaration, Lisa listed $2,500 as the
amount she spent as a “Retirement Contribution.” And in the
Report, Accountant determined that the parties had been saving
approximately $54,000 per year during the marriage, and
proposed that each of them be allocated $30,000 ($2,500 monthly)
for “Voluntary Retirement.” Lisa repeated this request in her
closing argument memorandum, again asking the court to
allocate $2,500 per month to her for “Voluntary Retirement
Savings.” John asserted at trial that retirement savings was not a
legitimate need, but the court, although noting that “there is
some traction to that argument,”8 made a contrary oral finding.
It opined that “it would seem prudent,” based on how the
parties “were living, that a $2,500 a month need to put away for
savings . . . is a need.” It also pointed out that John had
“historically . . . been putting away $4,500 a month out of his
income in retirement,” and found that Lisa should be allowed to
share in that opportunity.
¶59 But in the table in its written findings, the court struck
through the $2,500 figure and inserted a $2,000 figure. Notably, it
(…continued)
$2,500 in retirement savings expenses instead of $2,000—to
$26,000 in authorized monthly expenses.
8. Indeed, “the recipient spouse’s need to fund post-divorce
savings, investment, or retirement accounts may not ordinarily
be factored into an alimony determination,” and “inclusion of
savings deposits as part of the needs analysis in an alimony
determination is allowed only” where the court makes a specific
finding that “contributing to such accounts was standard
practice during the marriage and helped to form the couple’s
marital standard of living.” See Bakanowski v. Bakanowski, 2003
UT App 357, ¶ 16, 80 P.3d 153. Here, the court made such a
finding, and John does not challenge that finding on appeal.
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also mentioned this change in its narrative written findings,
specifically stating in the paragraph following the expense table
that it had “reduced the proposed amount from $2,500 to
$2,000.” Thus, the reduction from $2,500 to $2,000 is not—as Lisa
suggests—merely an unintended “typo,” but appears to have
been an intentional adjustment by the trial court.
¶60 The court, however, apparently neglected to re-sum all of
the line items after making this adjustment. Indeed, our own
review of the court’s arithmetic confirms John’s assertion that
the court made a mathematical error, because the individual line
items, when added together, total only $25,512.13. Such an error
constitutes plain error—it should have been obvious to the trial
court, and the error is prejudicial to John. See Vanderzon v.
Vanderzon, 2017 UT App 150, ¶ 32, 402 P.3d 219. Accordingly, we
direct the trial court, on remand, to correctly sum up the line
items that constitute Lisa’s reasonable expenses.
k. Tax-Related Expenses
¶61 The trial court determined that Lisa would need to pay
$3,416.66 per month in federal income tax, $916.67 per month in
state income tax, and $116.67 per month for FICA and Medicare.
John challenges these amounts, asserting that the tax
computations relied on assumed income from a higher alimony
amount than Lisa was ultimately awarded. This challenge was
preserved, so we review for abuse of discretion.
¶62 The tax figures adopted by the court were taken directly
from Lisa’s financial declaration. But those figures were based
on an underlying assumption that Lisa’s total monthly expenses,
excluding taxes, were $23,638, and that she would be receiving
taxable alimony payments in excess of $28,000. The trial court,
however, did not allocate to Lisa all of the amounts she had
requested. In the end, the court found that Lisa’s total monthly
non-tax expenses were $21,062.13, and ordered that she receive
taxable alimony payments of $26,000.
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¶63 John asserts that the court erred by not redoing the tax
computation following its downward adjustments to some of the
line items in the list of Lisa’s expenses. We agree. The tax figures
were derived from underlying expense amounts that the court
partly rejected. When adjustments are made to the amount of a
recipient spouse’s non-tax expenses, it becomes necessary to
recalculate that spouse’s tax obligations. We therefore instruct
the trial court, on remand, to recalculate the tax expense line
items, based both on the adjustments it already made to Lisa’s
expenses and failed to account for, as well as on the new
adjustments that we, in this opinion, instruct it to make to Lisa’s
expenses and (as discussed below, infra part I.A.2) to her
imputed income.
¶64 Thus, in sum, we sustain John’s challenge to the court’s
findings regarding Lisa’s expenses in the following particulars:
(a) we instruct the court to adjust, if necessary, Lisa’s food and
household expense allocations based on the change to equal
parent-time; (b) we instruct the court to correctly sum its line
items, and correct the mathematical error; and (c) we instruct the
court to recalculate Lisa’s tax obligations, after making the rest of
the adjustments required by this opinion. In all other respects,
we reject John’s challenges and affirm the trial court’s
determinations with regard to Lisa’s reasonable monthly
expenses.
2. Lisa’s Earning Capacity
¶65 The trial court determined that Lisa was capable of
earning $1,500 per month, and imputed that figure to her for
purposes of the second Jones factor. John challenges this
determination, asserting that Lisa should be deemed capable of
earning more. This issue is preserved, so we review for abuse of
discretion.
¶66 The second Jones factor requires a court to assess the
recipient spouse’s “earning capacity or ability to produce
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income.” Dahl v. Dahl, 2015 UT 79, ¶¶ 94–95, 459 P.3d 276(quotation simplified). And when faced with “an
underemployed spouse,” a trial court “may impute income” to
that spouse. Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 63, 402
P.3d 219 (quotation simplified). “The imputation analysis
involves determining whether a party is voluntarily
unemployed or underemployed and, if so, how much income
ought to be imputed. A person is voluntarily unemployed or
underemployed when he or she intentionally chooses of his or
her own free will to become unemployed or underemployed.”
Christensen v. Christensen, 2017 UT App 120, ¶ 21, 400 P.3d 1219(quotation simplified). “Any income imputation must ‘be based
upon employment potential and probable earnings as derived
from employment opportunities, work history, occupation
qualifications, and prevailing earnings for persons of similar
backgrounds in the community.’” Vanderzon, 2017 UT App 150,
¶ 63 (quoting Utah Code Ann. § 78B-12-203(7)(b) (LexisNexis
2012)). Furthermore, “imputation cannot be premised upon mere
conjecture; instead, it demands a careful and precise assessment
requiring detailed findings.” Christensen, 2017 UT App 120, ¶ 22
(quotation simplified).
¶67 In her financial declaration, Lisa listed her occupation as
“Homemaker/Part-Time Horse Boarding.” At trial, Lisa
indicated that she had made a deliberate choice not to seek full-
time employment outside the home, choosing instead to devote
her time to caring for the parties’ children. Nevertheless, she was
able to generate some revenue (if not profit, given the high costs
of keeping horses) during the final years of the marriage through
boarding horses and giving riding lessons. In 2015 and 2016, her
average annual income from these activities was $32,865. But
because the parties found it necessary to sell the Farm, including
the equestrian facilities, no party seriously contends that Lisa
should be expected, moving forward, to earn income from horse
boarding and giving riding lessons.
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¶68 Instead, John contends—after retaining a vocational
consultant whose report was admitted into evidence—that Lisa
is capable of full-time employment in several capacities (for
instance, as an exercise specialist, production assembler,
customer service representative, office clerk, or receptionist), and
that Lisa should therefore be imputed a full-time wage.
According to the consultant’s report, an exercise specialist earns
$35,945 per year, while the other jobs would pay between
$19,280 and $20,930 per year. During examination by her own
attorney at trial, Lisa was asked about these potential jobs, and
she acknowledged that she “could learn” to be a receptionist;
that she had the necessary skills to be an office clerk; that she
“could do what was needed” to succeed as a customer service
representative; and that, although she did not know what a
“production assembler” was, she “could learn what [she] needed
to do” in order to manage the job. Lisa pushed back, however,
when asked if she could succeed as an exercise specialist, and
offered her view that she did not have the necessary current
qualifications and experience for that job.
¶69 The court found that Lisa was not qualified to work as an
exercise specialist, stating that it was “not persuaded that [Lisa]
is capable of earning the $3,000.00 to $4,000.00 [per month that
John] suggests . . . , given that [Lisa] has not primarily worked
outside the home, and has had no relevant work related
experience in the field in which she obtained her degree in the
last 20 years.” However, the court made no specific finding that
Lisa was unqualified for the other full-time positions. Instead,
the court stated as follows:
The Court also finds that where [Lisa] has been a
full-time stay-at-home mother for the past 20 years,
it is not reasonable in this case to expect that [Lisa]
should go out and get a job, making her work full-
time, forcing the children into further surrogate
care. Thus, the Court imputes [Lisa] with $1,500.00
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per month, and it will be up to [Lisa] to determine
whether or not she ultimately wants to obtain
employment.
¶70 John challenges this ruling, asserting generally that—
especially given the equal parent-time arrangement—Lisa
should be expected to work full-time, just as he is expected to
work full-time, and asserting specifically that Lisa should be
imputed “at least $20,600” of annual income, approximately the
amount earned by a customer service representative. We agree
with John.
¶71 First, as discussed more fully below, the court did not
abuse its discretion by expecting John to continue to work at
least full-time, as he historically has, despite the fact that he cares
for the minor children on seven out of every fourteen nights. See
infra part I.A.3.c. In this case, given that each parent is capable of
full-time employment and has equal childcare obligations
moving forward, it is inequitable to expect one parent to work
full-time but excuse the other from any similar obligation. See
Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2019) (explaining that
in determining alimony, “the court shall consider . . . equitable
principles”). The calculus may well be different in other
situations, such as where one parent bears the lion’s share of
childcare duties. See Rehn v. Rehn, 1999 UT App 41, ¶¶ 4, 9, 974
P.2d 306 (stating, in a case where the payor spouse had only
three overnights in a fourteen-day period, that the trial court had
properly “impute[d] a lesser income to the recipient spouse so
that she might give adequate care and nurturing to the parties’
minor children”); see also Utah Code Ann. § 30-3-5(8)(a)(v)
(mandating that, in determining alimony awards, a court “shall
consider . . . whether the recipient spouse has custody of minor
children”). But here, where childcare obligations are equal, and
where neither parent labors under any particular impediment to
full-time employment, we are persuaded by John’s argument
that Lisa should be imputed a full-time wage.
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¶72 Second, with regard to which full-time wage to impute,
John does not directly challenge the trial court’s finding that Lisa
was not qualified to assume a full-time position as an exercise
specialist. But John does challenge the trial court’s failure to
impute income to Lisa in line with a customer service
representative position, which position Lisa acknowledged she
was qualified to assume. We find John’s argument persuasive. A
vocational consultant determined that Lisa is capable of working
as a customer service representative, and Lisa herself
acknowledged as much. And the trial court offered no reason—
in either its oral or written findings—why Lisa’s
acknowledgement should not be given weight. Moreover, we
cannot ascertain the source of the court’s $1,500 monthly figure.
¶73 Accordingly, we conclude that the trial court abused its
discretion by not imputing a full-time wage to Lisa, in line with
the parties’ equal parent-time arrangement and in line with
Lisa’s acknowledgement that she was qualified for full-time
work. We therefore reverse the court’s ruling on this point, and
remand with instructions to impute $20,600 in annual income to
Lisa—the specific amount John asks us to impute.
3. John’s Ability to Provide Support
¶74 The trial court determined that John’s income, for
purposes of the third Jones factor, was $75,000 per month. John
challenges this determination on several grounds, all but one of
which (identified below) were preserved. Thus, unless otherwise
noted, we review the court’s determinations for abuse of
discretion.
a. Farm Income
¶75 The trial court calculated John’s income from the parties’
tax returns from 2015, 2016, and 2017. But the amounts listed on
those tax returns included not only the income John earned from
his anesthesiology practice, but also income the parties earned
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together from operating the Farm. In his first challenge to the
trial court’s computation of his income, John complains that the
court improperly included Farm income in the computation, and
asserts that it should have been excluded moving forward since
the parties have sold the Farm. We agree with John.
¶76 We take Lisa’s point that courts typically use historical
averages as the starting point for calculations of income for
alimony purposes. But in situations like this, where the source of
part of the income is a property that the court has ordered to be
sold in connection with the divorce, it may be improper to
include that portion of income in the calculation. See Utah Code
Ann. § 30-3-5(8)(e) (stating that, in appropriate situations
regarding certain aspects of an alimony calculation, a court
applying “equitable principles” may “base alimony on the
standard of living that existed at the time of trial”). In this case,
there is no evidence that John intends to attempt to earn income
from equestrian-related endeavors in the future; indeed, as
discussed above, the Farm has been sold and the horses now
belong to Lisa. Thus, there is no evidence to support an
imputation of equestrian-related income to John. We agree with
John that the trial court abused its discretion in including Farm
income in John’s income calculation, and we direct the court, on
remand, to exclude Farm income from the calculation.
b. John’s Business Expenses
¶77 With regard to John’s income from his anesthesiology
practice, the trial court recognized that John’s gross income as a
self-employed individual was to be “calculated by subtracting
the necessary expenses required for self-employment of business
operation from gross receipts.” (Citing Utah Code Ann. § 78B-12-
203(4).) After considering the relevant testimony and argument,
the court found that the following were reasonable business
expenses: $120 per month for “phone expenses”; $100 per month
for “computer expenses”; $78 “per month for car insurance”;
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$254 per month for “vehicle gas and oil”; $330 per month for
“vehicle maintenance and repair”; $100 per month for vehicle
“licensing and registration”; $833 per month for a car payment;
and $300 “per month for continuing medical education.” The
court then divided all of these expenses in half, in view of the
fact that there were “both business and personal uses for” them,
and determined that John’s reasonable monthly business
expenses were $980.
¶78 John mounts a two-part challenge to the court’s
assessment of his reasonable business expenses. First, he asserts
that the court erred when it divided all of the expenses in half,
including the one for “continuing medical education.” This
particular challenge is unpreserved, so we review for plain error.
On this point, the trial court did not plainly err. Certainly, it is no
abuse of discretion—and John does not contend otherwise—to
divide phone, computer, and vehicle expenses in half, since
those are used partly for personal use. See Barrani v. Barrani, 2014
UT App 204, ¶¶ 15–16, 334 P.3d 994 (recognizing that expenses
that are “commonly used for personal as well as business
purposes,” such as a “vehicle and a cellular telephone,” may not
be entirely business expenses, depending on the circumstances).
And in this particular case, Accountant explained that John’s
“continuing medical education” expenses included costs for
travel, with other doctors, to medical conferences, and that
certain expenditures associated with those trips—such as costs of
“taking family” along or for “activities while you’re there”—
were more appropriately classified as personal. Given these
facts, we perceive no plain error in the trial court’s decision to
divide the listed expenses in half.
¶79 However, we find merit in the second part of John’s
argument, in which he asserts that there exist other business
expenses that the court improperly refused to subtract from his
gross receipts, including the cost of medical malpractice
insurance, overhead, and the cost of maintaining a medical
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license. Lisa does not argue that these items, in the abstract, are
not proper business expenses; indeed, we observe that these
expenses are “necessary to allow the business to operate at a
reasonable level.” See id. ¶ 15 (quotation simplified). Instead,
Lisa contends that John failed to provide the court with
sufficient evidence of these expenses. We disagree.
¶80 Evidence of these expenses came not only from John, but
also from Brother, one of John’s partners in the medical practice.
Brother testified that maintaining a medical license costs
“around $400 or $500” each year, and that malpractice insurance
costs “$8,500 a year,” or “about $700 a month.” Brother testified
that, in their medical practice, overhead was “around 7 to 8
percent” of gross income. This evidence is clear, and supports
John’s position that these business expenses are an essential part
of his medical practice, and that they have specific costs
associated with them. Moreover, these expenses are entirely
business-related, and not at all personal, and thus should not be
cut in half. Accordingly, we conclude that the court abused its
discretion by rejecting John’s request that these reasonable
business expenses be subtracted from his gross receipts in
calculating his income.
c. John’s Medical Income and Work Expectations
¶81 The final—and main—challenge John makes to the trial
court’s computation of his income is his contention that the
court’s computation, including the implied expectation that John
continue to work long hours, is fundamentally at odds with the
court’s custody and parent-time rulings, in which the court
found that it would be in the best interest of the minor children
for them to spend half of their time under John’s care. In essence,
John’s argument is that, by setting his income at $900,000
annually ($75,000 monthly), the court is forcing him to continue
to work sixty-plus-hour weeks, and that this will impede his
ability to effectuate a 50/50 parenting arrangement.
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¶82 Not all people—and not even all anesthesiologists—work
as many hours as John worked during the course of the parties’
marriage. As noted, John decided to work long hours, sometimes
in excess of sixty hours in a week, in order for the family to be
able to enjoy a very comfortable lifestyle. And John established a
long-term and consistent pattern of working more than others in
his practice group; indeed, he was the top wage-earner in his
practice for twelve years running, a status that he earned by
voluntarily working long hours and extra shifts. Over the last
three years of the marriage, John earned $882,132, $979,787, and
$906,199 from his medical practice (excluding the Farm income).
¶83 Under Utah law, “[i]ncome from earned income sources”
is typically “limited to the equivalent of one full-time 40-hour
job.” See Utah Code Ann. § 78B-12-203(2) (LexisNexis 2018).9
However, “if during the time before the original support order,
the parent normally and consistently worked more than 40 hours
at the parent’s job, the court may consider this extra time as a
pattern in calculating the parent’s ability” to earn income. See id.
Where, as here, there is evidence suggesting a long-term pattern
of a parent (or spouse) working extended hours, a trial court
does not abuse its discretion by concluding that the parent’s (or
spouse’s) income, for purposes of child support and alimony,
should be calculated with the historically longer workweek in
mind. See Tobler v. Tobler, 2014 UT App 239, ¶¶ 27–28, 337 P.3d
296 (affirming a trial court’s finding, based on evidence that the
husband “normally and consistently worked” overtime hours,
that the husband’s income should be calculated based on the
longer hours). Perhaps because of this statutory and case law
guidance, John does not directly challenge the court’s
9. “Although this section of the Utah Code addresses imputation
for the purposes of child support, it is also relevant to
imputation in the alimony context.” See Petrzelka v. Goodwin, 2020
UT App 34, ¶ 10 n.1, 461 P.3d 1134 (quotation simplified).
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determination that his historical work habits justify calculating
his future income based on more than a forty-hour workweek.
¶84 Instead, John’s challenge is subtler. He acknowledges—at
least impliedly—that the trial court’s income computation might
have been acceptable if the court had not, at the same time,
awarded him equal parent-time. In John’s view, it is the
combination of the court’s income determination and its custody
and parent-time orders that leads to problems; specifically, he
contends that the court’s “findings are internally inconsistent”
and “impossible in practice,” and that working so many hours
will make him less effective as a parent. We see the matter
differently.
¶85 As an initial matter, John made a decidedly different
argument in the fall of 2017, during the temporary orders phase
of the case, when he needed to rebut Lisa’s argument that he
should have only minimal parent-time in light of the demands of
his job. At that time, John asked for temporary orders that gave
each party “equal parent time with the minor children, to be
arranged in advance but taking into account [John’s] work
schedule, so that [John’s] parent time overlap[s] to the extent
possible the blocks of time when he is not scheduled to work.”
And in a supporting affidavit, John averred, “Although my work
schedule varies, I know what my work schedule is going to be
up to four months in advance and can schedule parent time
accordingly.” During the year in which he took those positions,
John earned $906,199 in income from his medical practice.
¶86 Moreover, if anything, the time demands that will be
placed on John during his parent-time have decreased since
2017. For one thing, by the time of trial, two of the three minor
children were already well into their teenage years, and the
youngest was eleven. And it bears noting that the two youngest
children—the two who are still minors today—are now both
teenagers and are proficient college-aspirant tennis players; the
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court might reasonably have assumed that these children are
often in school, at tennis lessons, or otherwise engaged, and do
not need constant supervision as would a toddler, for instance,
and that, in a situation like this, John may well be able to work at
least some hours even during the weeks when he has the
children in his care.
¶87 For these reasons, we do not view the trial court’s orders
as necessarily inconsistent, and we do not view the tasks set
before John as impossible. The trial court acted within the
bounds of its discretion when it took John’s temporary orders
affidavit at its word, and concluded that—given his flexible
work schedule, coupled with appropriate planning, foresight,
and perhaps a little help from friends and family on occasion—
John was up to the challenge of working his historical number of
hours while at the same time having seven nights of parent-time
during each fourteen-day period.
¶88 Moreover, although the trial court could have conceivably
credited John’s later statements—that he did not intend to keep
working such long hours, that working fewer hours would make
him a better parent, and that the court should assess his future
income according to a lighter work schedule—the court was
within its discretion to be somewhat skeptical of John’s stated
plans for a significant drop in income on the heels of contested
divorce proceedings. Cf. Gerwe v. Gerwe, 2018 UT App 75, ¶ 31,
424 P.3d 1113 (“It was within the court’s discretion to discredit
Husband’s claim that he was unable—as opposed to merely
unwilling—to provide the support ordered by the court.”).
¶89 Accordingly, we reject John’s main challenge to the trial
court’s calculation of his income, but agree with John that the
trial court abused its discretion by including the Farm income
and excluding certain business expenses in its calculation. We
remand with instructions for the court to correct these errors,
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although we acknowledge that their correction may or may not
affect the ultimate alimony award.
B. Duration of Alimony
¶90 The trial court ordered John to pay alimony to Lisa for
twenty years—the duration of the parties’ marriage. John
challenges that determination, contending that he should not be
required to pay alimony for that long, and that the court abused
its discretion by not selecting a shorter, rehabilitative time
period. This argument is preserved, so we review for abuse of
discretion.
¶91 Our legislature has set an outer boundary on the length of
alimony awards, mandating that, in the absence of “extenuating
circumstances,” “[a]limony may not be ordered for a duration
longer than the number of years that the marriage existed.” See
Utah Code Ann. § 30-3-5(8)(j) (LexisNexis 2019). But there is no
inner boundary on the length of an alimony award: a trial court
may, in appropriate cases, order that alimony be paid for a
shorter period, or may order that alimony payments taper off
gradually. See Gardner v. Gardner, 2019 UT 61, ¶ 80, 452 P.3d 1134(stating that “nothing in the [alimony] statute bars an award for
a shorter duration” than the length of the marriage, and that “an
alimony award for shorter than the term of the marriage should
be upheld unless it results in a serious inequity evidencing an
abuse of discretion” (quotation simplified)); Boyer v. Boyer, 2011
UT App 141, ¶ 14, 259 P.3d 1063 (stating that, “in the case of
rehabilitative alimony, a gradually decreasing award may be
appropriate”).
¶92 Rehabilitative alimony is a remedy “intended to ease the
recipient spouse’s financial adjustment period.” See Boyer, 2011
UT App 141, ¶ 15. Courts have ordered rehabilitative alimony,
within their discretion, in cases where marriages are not
extremely long in duration, and where the recipient spouse is of
an age and in possession of employment skills that make self-
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sufficiency likely. Id. ¶ 17; see also Jensen v. Jensen, 2008 UT App
392, ¶¶ 17–19, 197 P.3d 117. Rehabilitative alimony can also
further important societal goals; for instance, it discourages a
recipient spouse’s dependency on alimony payments, and
encourages self-sufficiency and independence. See Boyer, 2011
UT App 141, ¶¶ 4, 16–17. But courts risk abusing their discretion
when ordering rehabilitative alimony in cases that involve long
marriages and older parties. See, e.g., Mark v. Mark, 2009 UT App
374, ¶ 15, 223 P.3d 476 (concluding that a court abused its
discretion by ordering rehabilitative alimony where the parties
had been married for twenty-five years and the recipient spouse
was fifty-two years old with “limited marketable skills and
employment prospects”); Rasband v. Rasband, 752 P.2d 1331,
1333–35 (Utah Ct. App. 1988) (concluding that a court abused its
discretion by ordering rehabilitative alimony where the parties
had been married for thirty years).
¶93 John and Lisa had been married for twenty years and
were in their late forties when they divorced. Although Lisa has
a bachelor’s degree in exercise science and a master’s degree in
athletic training, she has never worked in those fields. After
considering the evidence presented, the trial court ordered John
to pay alimony, in the full amount without tapering, for twenty
years. John challenges this ruling, asserting that it “requires him
to work at a breakneck pace for the rest of his career, while
simultaneously relieving Lisa of the obligation to make any
progress toward self-sufficiency.”
¶94 In this case, the trial court was presented with facts that
cut both ways on the rehabilitative alimony question. On the one
hand, Lisa is a competent, educated individual with marketable
skills, and not so advanced in years that she would be unable to
develop a career in a chosen field. But on the other hand, the
parties were married for twenty years, Lisa was the primary
caregiver for the children and had never worked outside the
home, and the parties lived a very comfortable lifestyle based
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primarily on John’s income; even if Lisa ultimately procures
gainful employment outside the home, the income from that job,
by itself, is unlikely to be enough to allow her to enjoy anything
close to the lifestyle the parties enjoyed during the marriage.
¶95 Under the facts presented here, the trial court did not
abuse its discretion in determining not to order rehabilitative
alimony, and to order that John pay full alimony for a period of
time equal to the length of the marriage. We therefore reject
John’s challenge to the duration of the trial court’s alimony
award.
C. Retroactive Alimony
¶96 The trial court also ordered that its alimony award,
although entered in December 2018, be made retroactive for a
six-month period dating back to June 1, 2018, the date
corresponding to the court’s first temporary financial order in
the case. John challenges that decision in two respects. He first
asserts that the court erred in making its alimony order
retroactive “because the parties reached a stipulation regarding
temporary orders.” Second, he contends that the retroactive
award “should be reduced for all the same reasons . . . that the
forward-looking alimony award should be reduced.” With
regard to these challenges, we review the court’s decisions for
abuse of discretion.
1. Stipulation
¶97 In divorce, custody, and other domestic cases, the trial
court “may order a party to provide money, during the
pendency of the action, for the separate support and
maintenance of the other party and of any children in the
custody of the other party.” Utah Code Ann. § 30-3-3(3)
(LexisNexis 2019). Such temporary orders “may be amended
during the course of the action or in the final order or
judgment.” Id. § 30-3-3(4). Soon after filing her petition for
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divorce, Lisa invoked these provisions and asked the court to
enter temporary orders of support. Later, in May 2018, the court
entered a temporary support order that memorialized a
stipulation reached between the parties: Lisa would be able to
use a joint credit card for “household expenses,” and John would
pay those charges (as well as most of the parties’ bills), but Lisa
would “limit her charges to $3,000 per month,” and would
“charge no more attorney’s or expert fees to the card.” The
parties followed that procedure for the next few months, up
until trial.
¶98 At trial, Lisa testified that the $3,000 monthly allowance
turned out to be insufficient to allow her to meet her needs, and
that during the temporary orders period she had been forced to
“change the lifestyle from what [she] had previously enjoyed
during the marriage.” She testified that she was unable to attend
tennis tournaments with the children or properly care for her
horses, that she could not get necessary medical treatment for
herself, and that she had to “eat down [her] food storage” and
depend on members of her church congregation for “a lot of
meals.” The trial court credited this testimony, stating during the
course of its oral findings that “the temporary orders [had] left
[Lisa] almost destitute,” and at times dependent on “the bishop’s
storehouse to put food on the table.”
¶99 In its written findings, issued in December 2018, the court
found that “retroactive child support and alimony should be
awarded from June 1, 2018 to November 30, 2018.” In a
subsequent order, following post-trial motions, the court
calculated the amount of retroactive alimony owed to be
$147,000. However, the court “allowed [John] to deduct any
amounts he ha[d] paid for bills on [Lisa’s] behalf as he was
ordered to do in the temporary order,” including “the
approximately $3,500.00 per month that [Lisa] was able to charge
on the joint credit card.” The court determined that John had
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paid “$80,927.20 . . . on [Lisa’s] behalf, so that the final remaining
amount of retroactive alimony to be awarded [was] $66,072.80.”
¶100 John challenges this aspect of the trial court’s alimony
award, asserting that, because Lisa stipulated to the temporary
orders arrangement, she should not now be heard to complain
about its consequences, and that the parties’ “stipulation must
have an effect.” We reject John’s argument.
¶101 Trial courts have “significant discretion in fashioning
temporary support during the pendency of a divorce action,”
Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 39, 176 P.3d 476,
and, as noted, may at any time amend the orders “during the
course of the action or in the final order or judgment,” Utah
Code Ann. § 30-3-3(4) (emphasis added). In practice, temporary
orders are often entered after only a brief hearing, where
evidence—if taken at all—is taken by proffer, and are intended
to be merely a rough-cut estimate of what a court might do after
hearing all of the evidence at trial. Cf. Montano v. Third Dist.
Court, 934 P.2d 1156, 1157–58 (Utah Ct. App. 1997) (per curiam)
(acknowledging the parties’ representations that “it is a routine
practice to issue temporary . . . orders based solely on proffers of
witness testimony,” and noting that such a practice “is
discouraged” in custody proceedings). An arrangement
memorialized in a temporary order can of course be changed, in
a final decree of divorce, after a court hears all of the evidence
during a full trial. See id. at 1157. And this is no less true in cases
where a court enters a temporary order pursuant to the parties’
stipulation. Indeed, a court asked to revisit a temporary orders
arrangement after trial might even be justified in applying a
higher level of scrutiny to an arrangement reached by stipulation
than to one reached after a contested hearing before a
commissioner. Cf. Taylor v. Elison, 2011 UT App 272, ¶ 14, 263
P.3d 448 (deciding, at least in a custody context, to view
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stipulated divorce decrees more skeptically than adjudicated
decrees).10 Although Lisa stipulated to the temporary
arrangement whereunder she would be allotted $3,000 for
household expenditures, that stipulation did not bar her from
testifying, several months later, that the arrangement had proven
itself unworkable when viewed against the backdrop of the
parties’ historical lifestyle. And the stipulation certainly did not
prevent the trial court from amending the temporary order
retroactively after hearing all of the evidence presented at trial.
¶102 Trial courts have considerable discretion to amend
temporary orders at any time during the proceeding; they are
certainly justified in doing so in a final judgment entered after a
trial in which the parties have had a full and fair opportunity to
present evidence. In this situation, the court did not abuse its
discretion by making its alimony award retroactive to June 2018,
and thereby superseding the apparently unworkable
arrangement set forth in the temporary orders. We therefore
affirm the court’s determination that John should be ordered to
pay alimony retroactive to June 2018.11
10. The case of Davis v. Davis, 2001 UT App 225, 29 P.3d 676,
cited by John, does not hold to the contrary. In that case, the
parties’ stipulation was memorialized in a final divorce decree
rather than in a temporary order, and concerned an issue of fact:
that a father’s parental presumption had been rebutted. Id. ¶ 10.
Davis thus has little relevance to the situation presented here,
where the stipulation was memorialized in a temporary order,
and where the matter agreed upon was not a previously
disputed fact in issue but, instead, was a temporary agreement
about what a workable monthly allowance for Lisa might be.
11. John also argues that the trial court erred by dividing the
assets in the parties’ joint checking account using a balance from
(continued…)
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2. Reductions in Retroactive Award
¶103 John’s second challenge to the court’s retroactive alimony
award is his contention that the retroactive award “should be
reduced for all the same reasons . . . that the forward-looking
alimony award should be reduced.”12 We find merit in this
argument. As discussed above, several of the inputs to the
court’s alimony calculation—regarding some of Lisa’s needs,
Lisa’s earning capacity, and certain aspects of John’s income—
need to be adjusted. These adjustments will affect not only the
prospective amount of alimony owed, but also the court’s
calculation of how much retroactive alimony John owes. We
therefore remand for a recalculation of the retroactive alimony,
in light of the adjustments necessary to the overall alimony
amount.
(…continued)
March 2018 rather than September 2018. However, John
acknowledges that, as part of the court’s calculation of the
retroactive alimony award, he was credited for all funds that
Lisa withdrew from that account between April and September
2018. John therefore concedes that if we affirm the retroactive
alimony award, then his checking account argument fails.
Accordingly, because we affirm the retroactive award, we need
not further address this argument.
12. This argument was not presented below, but John asserts that
it “does not need to be preserved because it was raised for the
first time in the trial court’s decision.” (Citing State ex. rel. D.B.,
2012 UT 65, ¶ 34, 289 P.3d 459.) This does appear to be such a
situation where “the general preservation rule does not apply”
because “the alleged error first arises in the lower court’s final
order or judgment and thus, leaves no opportunity for the party
to object below or to bring issues to the attention of the trial
court.” See id. (quotation simplified).
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II. Attorney Fees
¶104 With regard to attorney fees, the court ruled that, “[b]ased
on [its] rulings [regarding] division of property and debts . . . ,
the Court is not awarding either party his/her attorney’s fees—in
that both parties will have sufficient assets and/or income to pay
their attorney’s fees.” John challenges this ruling, asserting that,
although the court nominally ordered each party to bear his or
her own fees, the practical effect of its ruling was that “John paid
both parties’ fees.” This claim was preserved, so we review for
abuse of discretion.
¶105 Prior to entry of the temporary orders, Lisa had charged
nearly $80,000—and John charged nearly $40,000—in attorney
and expert fees to the parties’ joint credit card, which caused the
card account to “reach[] its credit limit” because John “had been
unable to pay down the balance while continuing to meet the
parties’ other obligations.” John ultimately borrowed $50,000
against his 401(k) to help pay off the balance. Due in part to this
development, the parties agreed to include in the temporary
order a provision barring Lisa from charging any more attorney
and expert fees to the joint credit card, and Lisa charged no
additional fees to the card after that. After trial, the court
ordered each party to pay his or her own attorney and expert
fees, and made no adjustment to account for the portion of Lisa’s
attorney fees that John had already paid.
¶106 John brought this issue to the court’s attention in a post-
trial motion, asserting that, in essence, he had paid a substantial
portion of Lisa’s attorney fees without being credited for it, and
because the court had “ordered that each party should pay his or
her own attorney’s fees,” “[a]n adjustment [was] needed . . . in
order to make that happen.” As a result, John asked the court to
treat the payments “as premature distributions of the marital
estate” when formulating its retroactive alimony determination.
Lisa opposed this, arguing that John was “attempting to ‘double
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count’ many of the same funds” by asking for the 401(k) loan to
be included in the marital debt calculation, while also asking for
attorney fees he paid in the past to be assigned to Lisa.”
¶107 Ultimately, the court sided with Lisa: it refused to change
its prior ruling regarding attorney fees, and declined John’s
invitation to adjust the retroactive alimony amount to account
for fees he had already paid. In its oral ruling, the court stated
simply that it was “not going to change” its prior ruling, that it
“[did not] care if [payments were made] during that retroactive
time,” and that it was “not going to” give John credit for his
payment of some of Lisa’s fees. In its written order, the court
devoted one sentence to the issue, stating simply that it was
“declin[ing] to equalize the parties’ use of marital funds for
payment of attorney’s fees prior to trial,” and that it “denie[d]
[John’s] motion on this point.”
¶108 “In divorce cases, both the decision to award attorney fees
and the amount of such fees are within the trial court’s sound
discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 27, 335 P.3d
378 (quotation simplified). “Attorney fee awards, however, must
be based on [i] evidence of the financial need of the receiving
spouse, [ii] the ability of the other spouse to pay, and [iii] the
reasonableness of the requested fees. And, failure to consider
these factors is grounds for reversal on the fee issue.” Id.(quotation simplified). In Roberts, we “conclude[d] that the [trial]
court did not adequately explain” its attorney fees award
decision because, although it did make a finding about the
amount of fees, the trial court “did not make any specific
findings on the reasonableness of the award, [the husband’s]
ability to pay, or [the wife’s] needs.” Id. ¶¶ 28–29.
¶109 In this case, it was within the court’s discretion to make
attorney fees awards to one party or another. But in order to do
so, the court must first make adequate findings. See id. ¶¶ 27–29.
Here, the court professed not to be making any award of
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attorney fees, and to be requiring each party to bear his or her
own, but John has persuasively argued that he paid a significant
part of Lisa’s fees without being credited for that payment. If the
court wishes to award Lisa those fees, and require John to pay
them, it must engage with the three-part test, and make the
required findings. It cannot make such an award sub silentio,
while asserting that its order asks both parties to bear their own
fees.
¶110 We therefore remand this issue to the trial court for it to
clarify which path it is taking. It has two options. It can continue
to insist that both parties bear their own fees, in which case it
needs to make an adjustment to account for any portion of Lisa’s
fees that John paid, or at least explain why no such adjustment is
necessary. Alternatively, it can explicitly make a partial award of
attorney fees to Lisa, in which case it needs to make appropriate
findings, as set forth in Roberts.
CONCLUSION
¶111 We affirm many aspects of the trial court’s alimony
award. In particular, we affirm the court’s decisions to award
alimony for twenty years and to award retroactive alimony. We
also reject John’s argument that, with respect to his future
income, the court’s alimony award is inconsistent with its
custody award. However, we have identified a number of errors
in the court’s computation of the amount of alimony, and we
have identified a potential inconsistency in the court’s handling
of the attorney fees issue. Accordingly, we reverse those aspects
of the court’s rulings, and remand for further proceedings
consistent with this opinion.
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