Barrani v. Barrani , 768 Utah Adv. Rep. 32 ( 2014 )

2014 UT App 204_________________________________________________________
THE UTAH COURT OF APPEALS
DANIELLE BARRANI,
Petitioner and Appellee,
v.
KADRI O. BARRANI,
Respondent and Appellant.
Memorandum Decision
No. 20120212-CA
Filed August 28, 2014
Third District Court, Salt Lake Department
The Honorable Paul G. Maughan
No. 084901926
Cobie W. Spevak and Curtis L. Wenger, Attorneys
for Appellant
Danielle Barrani, Appellee Pro Se
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.
ROTH, Judge:
¶1 Kadri O. Barrani (Husband) appeals from the trial court’s
decisions following a bench trial on child custody, child support,
and alimony. We affirm the child custody and child support
orders. We remand, however, for the court to reconsider the
amount of monthly alimony Husband must pay to Danielle
Barrani (Wife).
Barrani v. Barrani
I. Custody
¶2 Husband first challenges the trial court’s decision to
award primary physical custody of the parties’ children to Wife
in the face of the joint custody recommendation by Husband’s
expert witness. Husband and Wife have two minor children who
each have special needs and require extensive attention and care.
Although both parents are capable of caring for the children and
the children are strongly bonded with each parent, Husband and
Wife are ‚extremely challeng*ed+‛ by co-parenting due to the
demands of the children’s needs and Husband’s and Wife’s
differing perspectives on how to manage their care. At trial,
Husband proposed a custody arrangement in which he and Wife
would equally share physical custody. According to Husband,
this arrangement would allow each parent an equal break from
parenting so that the parent would then be able to provide the
children with the best care when they were in his or her charge.
Under Husband’s proposed schedule, one parent would have
the children Mondays and Tuesdays, the other would have them
on Wednesdays and Thursdays, and the parents would rotate
the long weekends (the 2-2-3 schedule). The trial court rejected
the 2-2-3 schedule, finding that such an arrangement was ‚too
disruptive‛ given the needs of the children. The court also found
that Husband ‚has not demonstrated any feasible way in which
he could take on additional visitation or custody involving joint
custody and still maintain his current employment without
adversely affecting that employment.‛ Accordingly, the court
determined that the 2-2-3 schedule was not in the children’s best
interests. Instead, it retained the custody arrangement that the
parties had agreed to during their two-year separation (the
existing schedule), which gave Wife primary physical custody of
the children and allowed Husband overnight parent-time each
Wednesday and every other weekend.
¶3 On appeal, Husband contends that the record does not
support the trial court’s express finding that the 2-2-3 schedule
was not in the children’s best interests or the implicit corollary
finding that the existing schedule was. Husband identifies what
he perceives to be two errors in this decision: first, that the court
20120212-CA 2 2014 UT App 204Barrani v. Barrani
inappropriately disregarded the recommendation of the expert
custody evaluator who endorsed the 2-2-3 schedule that
Husband had proposed and, second, that there was no basis for
the court’s finding that Husband could not provide additional
care for the children and maintain his employment. ‚The trial
court’s decision regarding custody will not be upset absent a
showing of an abuse of discretion or manifest injustice.‛
Woodward v. LaFranca, 2013 UT App 147, ¶ 6, 305 P.3d 181(citation and internal quotation marks omitted). ‚Findings of
fact, whether based on oral or documentary evidence, shall not
be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility
of the witnesses.‛ Utah R. Civ. P. 52(a).
A. The Custody Evaluator’s Recommendation
¶4 ‚*C+ourts are not bound to accept the testimony of an
expert and [are] free to judge the expert testimony as to its
credibility and its persuasive influence in light of all of the other
evidence in the case.‛ State v. Maestas, 2012 UT 46, ¶ 200, 299
P.3d 892 (second alteration in original) (citation and internal
quotation marks omitted); accord In re G.Y., 962 P.2d 78, 83 (Utah
Ct. App. 1998) (‚*A+ trial court is free to accept or reject an
expert’s opinion and may accord that opinion whatever weight it
deems proper.‛); cf. Lyon v. Bryan, 2011 UT App 256, ¶ 10, 262
P.3d 1199 (‚A jury is not required to believe an expert witness
even when that expert’s opinion is unchallenged by the opinion
of an opposing expert.‛). Nevertheless, ‚‘*a+lthough the trial
court [is] not bound to accept’ an expert’s recommendation, the
court is expected to articulate ‘some reason for rejecting the
recommendation.’‛ Woodward, 2013 UT App 147, ¶ 7 (second
alteration in original) (quoting Tuckey v. Tuckey, 649 P.2d 88, 91
(Utah 1982)). The trial court did so here.
¶5 The trial court stated that it would not impose the 2-2-3
schedule because it was ‚too disruptive‛ for the children. This
decision is supported by Wife’s testimony. Wife testified that she
believed the 2-2-3 schedule would be disruptive in terms of
attending to the children’s needs and maintaining their
20120212-CA 3 2014 UT App 204Barrani v. Barrani
extracurricular activities. She explained that the parties’
daughter frequently gets sick for extended periods and that
when the daughter is sick, she cannot be moved as often as the
2-2-3 schedule would require. Furthermore, Wife was concerned
that moving between Husband’s and Wife’s homes so frequently
would negatively affect the behavior of the children, especially
their daughter, whose behavioral health depends on routine.
Wife opined that the existing schedule was working well and
expressed concern that a new schedule would increase the
daughter’s behavioral issues. Wife was also concerned that the
2-2-3 schedule would increase the opportunities for conflict
between herself and Husband. Wife offered as an example that
the parties cannot agree about which extracurricular activities
the children should participate in and that the 2-2-3 schedule
would require the children either to give up their current
activities or to reschedule them for the days the children were in
her care.
¶6 Thus, in reaching its decision that the existing schedule
best met the children’s needs, the trial court apparently gave
more weight to Wife’s testimony than to the custody evaluator’s
opinion. Because determinations regarding the weight to be
given to the testimony of witnesses, including expert witnesses,
are within the province of the finder of fact, we will not second
guess a court’s decisions about evidentiary weight and
credibility if there is a reasonable basis in the record to support
them. Id. (‚Thus, we may reverse a trial court’s credibility
determination [only] if its findings in support of that
determination are clearly erroneous, that is, if they are against
the clear weight of the evidence . . . .‛ (citation and internal
quotation marks omitted)). In this case, the trial court explained
why it was rejecting the expert’s recommendation, and that
explanation has a basis in the record. Therefore, we decline to
disturb either the trial court’s determination that the 2-2-3
schedule was too disruptive or its decision to continue the
existing schedule, even though that schedule deviated from the
expert’s recommendation.
20120212-CA 4 2014 UT App 204Barrani v. Barrani
B. Husband’s Employment
¶7 Husband also challenges the court’s finding that the 2-2-3
schedule was not feasible because Husband cannot provide
additional care for the children and maintain his employment.
Despite hearing from the custody evaluator that Husband had
only ‚somewhat less‛ availability to care for the children than
Wife and that Husband was willing to provide additional care,
the court remained concerned that Husband ‚ha*d+ not
demonstrated any feasible way in which he could take on
additional . . . custody . . . and still maintain his current
employment‛ or how his assumption of additional custody
would allow Wife to engage in employment while he cared for
the children. Husband asserts that by taking advantage of the
flexibility in his work schedule, he had already cared for the
children more frequently than the existing schedule
contemplated over the course of a few months. Yet although the
court seemed willing to consider allowing Husband more
custody or parent-time, it found that Husband had not shown
that such an arrangement could be sustained over the longer
term or that it would best meet the children’s needs.
¶8 This finding is supported by ample evidence in the
record. Husband and Wife both testified that Husband had cared
for the children for longer periods than the existing schedule
contemplated over the course of a few months but that such
extended care was provided on an emergency, short-term basis.
Twice, Husband provided additional care while Wife underwent
emergency medical procedures. On another occasion, Husband
had cared for the children for additional days while Wife was
preparing to move. However, Husband did not provide the
court with a plan for maintaining his current workload as a real
estate appraiser, which requires daily travel to property sites
located ‚anywhere from Weber County to Utah County,‛ while
caring for the children during two days of the traditional work
week plus every other long weekend, which also includes a
work day. And although the children are in school for some of
the time they would be with him under the 2-2-3 schedule,
Husband did not describe how he would balance his
20120212-CA 5 2014 UT App 204Barrani v. Barrani
employment obligations when one of the children became ill,
which Wife testified occurred frequently and unexpectedly. Nor
did Husband’s proposal that he assume additional care of the
children necessarily allow Wife to obtain employment to offset
any reduced income while he had the children. In the context of
explaining why she could not get a job even though she had the
time, Wife stated that one parent needed to be available to care
for the children during any illnesses, which, at least with the
daughter, tend to be prolonged and often require her to stay at
one home until well enough to be moved. Wife testified that
over the course of the marriage and in the years following the
parties’ separation, she has generally been the one who provides
care while the children are sick, even if doing so encroached
upon Husband’s exercise of parent-time. Thus, although
Husband had cared for the children for more time than the
existing schedule contemplated over the course of a few months,
he did not demonstrate that his employment provided the
flexibility to do so on a sustained basis.
C. Summary
¶9 As a result of its findings, the court decided against the
equal-share custody arrangement Husband proposed, even
though recommended by Husband’s expert, and awarded Wife
primary physical custody of the children. Aside from claiming
that the court disregarded the custody evaluator’s
recommendations and that the underlying findings were not
otherwise supported by the record, Husband has not asserted
that the trial court abused its discretion in reaching its custody
decision. We therefore affirm the court’s custody decision. See
Woodward v. LaFranca, 2013 UT App 147, ¶ 6, 305 P.3d 181 (‚The
trial court’s decision regarding custody will not be upset absent
a showing of an abuse of discretion or manifest injustice.‛
(citation and internal quotation marks omitted)).
II. Child Support
¶10 Husband next challenges the trial court’s order that he
pay $1,238 per month in child support. Husband contends that
20120212-CA 6 2014 UT App 204Barrani v. Barrani
the trial court erred in calculating that amount because it failed
to deduct necessary business expenses, as reported on his federal
tax returns, from his gross income.
¶11 A noncustodial parent’s child support obligation is
calculated using each parent’s adjusted gross income. Utah Code
Ann. § 78B-12-207 (LexisNexis 2012). When a parent is self-
employed, ‚*g+ross income . . . shall be calculated by subtracting
necessary expenses required for self-employment or business
operation from gross receipts.‛ Id. § 78B-12-203(4)(a) (emphasis
added). However, ‚*o]nly those expenses necessary to allow the
business to operate at a reasonable level may be deducted from
gross receipts.‛ Id. (emphasis added). In addition, not all
business expenses claimed on a tax return constitute deductible
business expenses under the child support statutes. Id. § 78B-12-
203(4)(b). In assessing a parent’s ability to pay child support,
‚the trial court *is+ best equipped to find whether [expenses are]
necessary.‛ Bingham v. Bingham, 872 P.2d 1065, 1067 (Utah Ct.
App. 1994). As a result, we accord a court broad discretion to
determine whether a particular expense is necessary to operate
the parent’s business. Jensen v. Bowcut, 892 P.2d 1053, 1057 (Utah
Ct. App. 1995).
¶12 At trial, Husband testified that his business as a real estate
appraiser requires him to travel daily to property sites, which
can be located ‚anywhere from Weber County to Utah County.‛
As a consequence, he needs a cellular telephone and a vehicle.
Husband also reported that he prepares his appraisal reports
electronically and keeps his own accounting. Accordingly,
Husband claimed he had incurred business expenses for his
vehicle (travel and depreciation), cell phone, meals while
traveling, and a home office.
¶13 As support for his claimed business expenses, Husband
submitted his 2008 and 2009 tax returns, which showed that he
had taken deductions for these expenses, and a minute entry
from the domestic relations commissioner, in which the
commissioner had considered these claimed expenses as part of
her detailed recommendation on alimony. In her minute entry,
20120212-CA 7 2014 UT App 204Barrani v. Barrani
the commissioner recommended that these expenses be
disallowed in calculating Husband’s income. She noted that
several expenses were actually claims of depreciation and that
Husband had not demonstrated that ‚the depreciation expenses
were actually out of pocket expenses.‛ Regarding Husband’s
other claimed business expenses, the commissioner indicated
that she was not convinced that ‚these expenses . . . were solely
business-related‛ or necessary to ‚‘allow his business to operate
at a reasonable level’‛ because Husband had not submitted any
receipts. (Quoting Utah Code Ann. § 78B-12-203(4).) The trial
court adopted the commissioner’s recommendation that the
business expenses be disallowed, explaining that after
‚conduct*ing+ an in-depth review‛ of Husband’s proposed
deductions, the commissioner had determined that Husband
had ‚failed to show that they were solely business-related.‛
Husband also had not demonstrated to the trial court that he
incurred the vehicle and office expenses ‚out-of-pocket.‛
¶14 On appeal, Husband contends that the trial court held
him to a higher standard of proof than the applicable statute
contemplates. When reviewing an interpretation of a statute, we
look first at the statute’s plain language with the goal of giving
effect to its intended purpose. In re Adoption of Baby E.Z., 2011 UT
38, ¶ 15, 266 P.3d 702. According to Husband, the statute ‚does
not require a showing that the expenses were solely business-
related‛ or ‚proof that business-related expenses are [incurred]
out-of-pocket.‛ Husband’s arguments, however, overlook the
fact that the statute does require the person claiming business
expenses to ‚prove that those expenses are necessary to allow
the business to operate at a reasonable level.‛ Reinhart v.
Reinhart, 963 P.2d 757, 759 n.3 (Utah Ct. App. 1998); see also Utah
Code Ann. § 78B-12-203(4)(a). And the trial court and the
commissioner interpreted this language to mean that expenses
that are necessary to operate the business do not include those
that would be incurred for personal use regardless of the
business. Such an interpretation is consistent with the statute’s
plain meaning and its purpose.
20120212-CA 8 2014 UT App 204Barrani v. Barrani
¶15 The expenses that Husband claimed as necessary for
business are commonly used for personal as well as business
purposes. For example, a vehicle and a cellular telephone are
common accoutrements of personal life, and Husband has not
demonstrated that it was unreasonable for the court to require,
for child support purposes, that he show that they have been
dedicated entirely to business use or establish the proportion of
personal and business use for each in order to establish that the
associated expenses are ‚necessary‛ for the business rather than
simply expenses that would have been incurred at the same level
whether or not used for business. See Utah Code Ann. § 78B-12-
203(4)(a); Reinhart, 963 P.2d at 759 n.3. The issue with regard to
meals and the home office is similar; everyone has food and
housing expenses, and the question is whether amounts claimed
as business expenses are simply duplicates of what would be
incurred in any event or instead include an increase attributable
to the operation of the business itself. Again, Husband has not
demonstrated that it was unreasonable for the trial court to
require him to show that the submitted business expenses were
incurred entirely—or incrementally—for the purpose of
operating the business. Husband did not provide any evidence
to establish this. And from the evidence that was presented, the
trial court was not convinced that the entirety of Husband’s
claimed expenses were ‚necessary to allow the business to
operate at a reasonable level.‛ See Reinhart, 963 P.2d at 759 n.3;
see also Utah Code Ann. § 78B-12-203(4)(b) (explaining that a trial
court need not find all business expenses claimed on a tax return
eligible for deduction from gross income when calculating
income for purposes of awarding child support).
¶16 Here, both Husband and the trial court had the benefit of
the commissioner’s detailed critique of his gross-expenses
approach and her recommendation to disallow many of his
claimed business expenses. Husband nevertheless chose to
continue with what amounted to an ‚all or nothing‛ approach at
trial, which the trial court also rejected. The trial court reviewed
the commissioner’s recommendation and made its own analysis
of the evidence to arrive at a conclusion that Husband’s claimed
offsets to his income for purposes of calculating child support
20120212-CA 9 2014 UT App 204Barrani v. Barrani
were not justified because he had failed to separate personal and
business use. ‚*T+he trial court was best equipped to find
whether *Husband’s expenses+ were necessary.‛ See Bingham v.
Bingham, 872 P.2d 1065, 1067 (Utah Ct. App. 1994); see also Jensen
v. Bowcut, 892 P.2d 1053, 1057 (Utah Ct. App. 1995) (‚Application
of this provision [for deducting necessary business expenses] is
within the broad discretion of the trial court.‛). Under
circumstances that suggested personal as well as business
purposes for the claimed expenses, the trial court did not abuse
its discretion in requiring Husband to separate the two for
purposes of establishing his adjusted gross income to calculate
child support.
¶17 Husband also contends that the trial court failed
to deduct the depreciation of his home office and
vehicle because he did not incur these expenses ‚out-of-
pocket.‛ Husband correctly points out that depreciation
is not an ‚out-of-pocket‛ expense. See Internal Revenue
Service, A Brief Overview of Depreciation (last updated July
2, 2014), http://www.irs.gov/Businesses/Small-Businesses-&-Self-
Employed/A-Brief-Overview-of-Depreciation (‚Depreciation is
an income tax deduction that allows a taxpayer to recover the
cost or other basis of certain property. It is an annual allowance
for the wear and tear, deterioration, or obsolescence of the
property. Most types of tangible property (except, land), such as
buildings, machinery, vehicles, furniture, and equipment are
depreciable.‛); see also “Depreciate,‛ Merriam-Webster.com,
www.merriam-webster.com/dictionary/depreciate (last visited
July 28, 2014) (defining ‚depreciate‛ as ‚to deduct from taxable
income a portion of the original cost of (a business asset) over
several years as the value of the asset decreases‛). However, we
need not address the effect of the trial court’s statement that
depreciation is not ‚out-of-pocket‛ because Husband has not
demonstrated that depreciation is a type of expense that ought to
be deducted from gross income when calculating child support.
¶18 Whether depreciation is a necessary business expense that
can be deducted from income for purposes of calculating child
support is not addressed by the child support statutes. See Utah
20120212-CA 10 2014 UT App 204Barrani v. Barrani
Code Ann. § 78B-12-203(4) (LexisNexis 2012) (calculating
‚*g+ross income . . . by subtracting necessary expenses required for
self-employment or business operation from gross receipts‛ but
noting that not all business expenses claimed on a tax return
constitute deductible business expenses for purposes of
calculating child support (emphasis added)). And Husband has
not provided sufficient analysis of this issue to permit us to
meaningfully review it. Indeed, Husband cites only a decision by
the Alaska Supreme Court, in which it recognized that ‚straight-
line depreciation of business equipment‛ is a ‚real‛ cost that
should be deducted from self-employment income prior to
calculating child support income so long as the asset was not
acquired to avoid or reduce child support. Ogard v. Ogard, 808
P.2d 815, 819 (Alaska 1991). The Alaska case, however, notes that
under the applicable rule, other types of depreciation are not
deductible for purposes of calculating child support income. Id.At least one other jurisdiction has held that depreciation is not
an ordinary and necessary business expense in the child support
context. See Sizemore v. Sizemore, 603 N.E.2d 1032, 1034–35 (Ohio
Ct. App. 1991). Without more, the fact that an Alaska court
permitted depreciation to be deducted from income under
limited circumstances—circumstances that Husband has not
demonstrated were even present here—does not persuade us to
overturn the trial court’s decision to exclude it in this case.
¶19 Because Husband has failed to demonstrate that the trial
court erred in either its findings or its interpretation of the child
support statute, we will not disturb its decision to disallow the
claimed expenses. See Bingham, 872 P.2d at 1067. Accordingly,
we affirm the child support award.
III. Alimony
¶20 Finally, Husband challenges the trial court’s findings
supporting its order that he pay Wife $1,892 per month in
alimony for eleven years (the duration of the marriage).
Husband contends that the court’s findings lack evidentiary
support and are therefore clearly erroneous. In particular, he
asserts that the court underestimated Wife’s ability to earn
20120212-CA 11 2014 UT App 204Barrani v. Barrani
income and overestimated his ability to pay support because it
miscalculated his income and improperly reduced his monthly
expenses.
¶21 In awarding alimony, the trial court must consider ‚[1]
the financial conditions and needs of the [recipient spouse]; [2]
the ability of the [recipient] to produce a sufficient income . . . ;
and [3] the ability of the [payor spouse] to provide support.‛
Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (first, third, and
fifth alterations in original) (citation and internal quotation
marks omitted). So long as these factors are taken into account,
‚[t]rial courts have considerable discretion in determining
alimony . . . and [determinations of alimony] will be upheld on
appeal unless a clear and prejudicial abuse of discretion is
demonstrated.‛ Jensen v. Jensen, 2008 UT App 392, ¶ 5, 197 P.3d
117 (omission and second alteration in original) (citation and
internal quotation marks omitted). ‚*T+he court must support*+
its decision with adequate findings and conclusions.‛ Kidd v.
Kidd, 2014 UT App 26, ¶ 13, 321 P.3d 200 (second alteration in
original) (citation and internal quotation marks omitted). ‚Those
findings must be sufficiently detailed and include enough
subsidiary facts to disclose the steps by which the ultimate
conclusion on each factual issue was reached.‛ Id. (citation and
internal quotation marks omitted). Husband challenges the trial
court’s findings regarding two of the statutory factors: Wife’s
earning capacity and Husband’s ability to pay support.
A. Wife’s Earning Capacity
¶22 On the issue of Wife’s ability to earn, Husband contests
the court’s finding that Wife ‚will be unable to work in the
foreseeable future while caring for these children,‛ which was
the basis for its decision not to impute income to Wife. Husband
claims that the court’s finding is ‚against the weight of the
evidence‛ because Wife had testified that she spends significant
time volunteering—time that she could just as well spend in
paid employment. We find no error in the trial court’s
determination of Wife’s earning capacity.
20120212-CA 12 2014 UT App 204Barrani v. Barrani
¶23 The court heard testimony that Wife has a bachelor’s
degree in business management but also that, other than some
unpaid management of the parties’ rental properties, she worked
outside of the home very little during the eleven-year marriage.
Her gross monthly income during the months that she did work
outside the home was $3,000 or less. Wife explained that the
children’s needs prohibited her from seeking employment
during the marriage and that the intensity and ongoing nature of
their needs as a practical matter continues to prevent her from
working outside the home after the divorce. Wife did testify that
she spent a significant number of hours volunteering, both
during the marriage and post-separation, but, she explained, the
volunteer work had flexible hours and allowed her to bring the
children with her, unlike any paid work she was likely to be able
to obtain.
¶24 Based on Wife’s testimony and other evidence about the
parenting challenges inherent in the children’s special needs, the
trial court declined to impute any income to Wife because ‚she
will be unable to work in the foreseeable future while caring for
these children.‛ Husband contends that Wife’s testimony that
she has spent significant time volunteering makes the court’s
finding that Wife is ‚unable to work‛ clearly erroneous.
However, an appellate court’s role is not to reweigh the evidence
presented at trial but only to determine whether the court’s
decision is supported by the evidence, leaving questions of
credibility and weight to the trial court. Kimball v. Kimball, 2009
UT App 233, ¶ 20 n.5, 217 P.3d 733 (‚No matter what contrary
facts might have been found from all the evidence, our deference
to the trial court’s pre-eminent role as fact-finder requires us to
take the findings of fact as our starting point, unless particular
findings have been shown . . . to lack legally adequate
evidentiary support.‛). Husband’s complaint is essentially that if
Wife had time to volunteer, she had at least equal time to get a
paying job. But because Wife testified that paid employment did
not provide the flexibility that volunteer work does to attend to
the children’s extensive needs, there is a basis in the record for
the trial court’s finding that Wife ‚will be unable to work . . .
while caring for these children.‛ Accordingly, the court’s finding
20120212-CA 13 2014 UT App 204Barrani v. Barrani
that Wife was unable to obtain work and provide the children
the level of care they require is not clearly erroneous, and that
finding supports the court’s conclusion about Wife’s ability to
provide for her own needs under these circumstances.
B. Husband’s Ability to Pay Alimony
¶25 Husband also challenges the court’s calculation of his
income in determining his ability to pay alimony on two
grounds. First, he takes issue with the trial court’s finding that,
as a real estate appraiser, he is capable of earning $5,465 per
month, the average of his incomes between 2007 and 2009. He
claims that in calculating his monthly income, the court ‚should
not have relied on his 2007 *tax+ returns‛ because after ‚the
[2008] housing market collapse had affected all areas of the
industry,‛ he has not been capable of making the same income in
today’s market as he was in 2007. But Husband’s challenge
oversimplifies the evidence presented at trial. On this issue, the
court heard from Husband that he is self-employed and that his
income fluctuates depending upon the real estate market. For
example, between 2007 and 2009, Husband’s gross income
dropped from $81,700 to $37,495 and then rose again to $77,545.
Husband further testified that he expects his income to decrease
in the future because of a new law that requires him to pay up to
half of the fee he receives from doing an appraisal to a third-
party referral service.1 He asserted that based on his net income
in 2008 and 2009, $3,550 is a reasonable estimate of how much he
can now earn monthly. Husband also testified that he brings in
another $1,000 a month in rent. However, he discouraged the
court from considering the rental income as part of his monthly
income on the basis that he has seen a net loss on his rental units
since the separation because he has paid more toward the
1. Husband never identified the specific law that would impose
this obligation.
20120212-CA 14 2014 UT App 204Barrani v. Barrani
mortgage than he has received in rent.2 Husband also submitted
a financial declaration, in which he stated that he incurs $4,042 in
monthly expenses, not including child support. He requested
that no alimony be awarded because his monthly expenses and
income demonstrated that he had no ability to pay alimony.
¶26 The trial court accepted Husband’s invitation not to
consider rental income but rejected Husband’s contention that
only his 2008 and 2009 income ought to be considered in
calculating his monthly income. Instead, it determined that
Husband’s three-year gross-income history ‚is a better indicator
of *Husband+’s income‛ and that based on that history, Husband
is capable of earning $5,465 per month. There is a rational basis
in the evidence for the trial court to take this approach in
determining Husband’s ability to pay alimony. For instance,
although Husband’s 2008 income was considerably lower than
his 2007 income, Husband had testified that since the 2008
housing market collapse, he had ‚tried to maximize‛ his income
by ‚tak*ing+ as much work as possible,‛ including expanding the
market areas in which he appraises homes. And, indeed,
Husband’s 2009 income is reasonably consistent with his 2007
income, suggesting that the 2008 decrease related to the housing
market collapse was an anomaly in Husband’s overall earning
history. Husband criticizes the fact that the court gave any
weight at all to his 2007 earnings, implying that, in doing so, it
gave too little weight to his 2008 earnings. In fact, the trial court
included the significantly lower 2008 income, along with
Husband’s higher income both before and after 2008, in
determining Husband’s future earning capacity. Thus, the
2. Husband owns a triplex. During the marriage, he, Wife, and
the children lived in one unit, and they rented out the other two
units. Following the separation, Husband continued to reside in
the unit, and the parties stipulated that Wife would either live in
one of the other units rent-free or rent out the unit and apply the
proceeds toward alternative housing. This arrangement resulted
in Husband having income from only one rental unit.
20120212-CA 15 2014 UT App 204Barrani v. Barrani
court’s calculation of Husband’s monthly income sufficiently
recognizes both the risk and unpredictability in Husband’s line
of work and his ability to earn over time. Husband has not
persuaded us that that the trial court erred in determining that
he is capable of earning $5,465 per month.
¶27 Husband’s second complaint about the trial court’s
determination of his ability to pay alimony relates to his claimed
monthly expenses. Husband argues that there was insufficient
evidence to support the trial court’s decision to reduce his
monthly expenses by disallowing a monthly car payment of
$395.3 In doing so, the court reasoned that Husband had not
demonstrated that he was currently making any payments on
that obligation. Husband asserts that the court’s finding is
clearly erroneous because both his testimony at trial and his
notarized financial declaration showed that he was paying $395
a month to his parents for a van and Wife did not put on any
evidence to dispute that Husband has this ongoing obligation.
Furthermore, he contends, the trial court had not ‚question*ed+
any other of his expenses for which he had not provided proof
per se but had simply listed on his financial declaration.‛ The
trial court explained, however, that it did not find credible
Husband’s claim to be paying his parents $395 per month for the
van. Husband’s testimony indicated that his parents had paid off
his loan on the van to avoid its repossession. And although
Husband claimed to be paying them back at a rate of $395 a
month, he did not convince the trial court that this ‚payment . . .
has been made or is ongoing,‛ particularly where the original
loan had been paid off and, other than Husband’s claim to be
repaying his parents, the van ‚is now otherwise paid for.‛ From
3. For purposes of calculating his income to pay alimony,
Husband claimed $4,042 in monthly expenses. The court
disallowed $1,146 of those expenses ($846 for two car payments,
$200 for food and household supplies, and $100 for home
maintenance). Husband only challenges the disallowance of the
$395 car payment.
20120212-CA 16 2014 UT App 204Barrani v. Barrani
its findings, it seems that the court was reluctant to credit the
$395 car payment where the loan obligation was familial in
nature and Husband had not presented any evidence to
demonstrate that it was actually being paid, beyond Husband’s
own testimony and declaration. It is within the court’s discretion
to discredit a claim of debt because it finds the purely
testimonial evidence of its existence, standing alone, to be
unconvincing. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 11,
271 P.3d 837 (‚It is within the province of the trial court, as the
finder of fact, to resolve issues of credibility.‛). Therefore, the
trial court’s decision to disallow as an expense the claimed
payment on the van was not clearly erroneous. Cf. Woolums v.
Woolums, 2013 UT App 232, ¶ 23, 312 P.3d 939 (Orme, J.,
concurring in part and dissenting in part) (dissenting from the
majority’s decision affirming the trial court’s decision to disallow
$400 for an intra-familial loan as part of the husband’s monthly
expense because under the circumstances, the loan at issue
‚seems to have been on much firmer footing‛ than intra-familial
loans in other divorce cases because ‚there was a firmly
established payment schedule of $500 per month‛).
C. Remand
¶28 Although we have rejected Husband’s challenges to the
trial court’s decisions regarding Wife’s earning ability,
Husband’s income, and the $395 car payment, we nevertheless
are concerned about the propriety of the alimony order because
there appear to be a number of errors in the calculation of the
monthly amount. After the trial court deducted certain
disallowed expenses, it concluded that Husband had monthly
expenses of $2,569. It then determined that because Wife had
$2,900 in unmet needs4 and Husband earned $2,896 more than
he needed to meet his expenses, Husband could pay monthly
4. Husband has not challenged the trial court’s finding that Wife
has monthly expenses totaling $2,900.
20120212-CA 17 2014 UT App 204Barrani v. Barrani
alimony to Wife in the amount of $1,812, which the court
concluded equaled the ‚shortfall between child support and her
personal needs.‛ The court’s calculations appear flawed in
certain respects.
¶29 First, the amount of alimony awarded seems to exceed
Wife’s needs. When Wife’s total monthly expenses—$2,900—are
offset by the monthly child support payment she receives—
$1,238—she is left with what appears to be $1,662 in unmet
expenses, not $1,812, the amount the trial court awarded in
monthly alimony. Second, the amount of support ordered seems
to exceed Husband’s available income, even after correcting the
apparent mathematical error in the alimony calculation. When
alimony is reduced to $1,662, Husband’s monthly support
obligations total $2,900, which is roughly equivalent to the
$2,896 the court concluded Husband had available to cover those
obligations. However, there appears to be a mathematical error
in that calculation as well. Of the $4,042 Husband claimed for
monthly expenses, the court identified only $1,146 in expenses
that were to be disallowed. Using these numbers, Husband’s
monthly expenses total $2,896, not $2,569 as the trial court
calculated.5 Thus, the trial court’s alimony award appears to
exceed Husband’s ability to pay by about $300.
¶30 An alimony award in excess of the recipient’s need is a
basis for remand even when the payor spouse has the ability to
pay. See Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App.
1994). In cases such as this, where the recipient’s needs appear to
exceed the payor’s ability to pay and the alimony award seems
to exceed the recipient’s needs, we must remand to give the trial
court an opportunity to address the apparent discrepancies in
the alimony calculation and to conduct an appropriate
5. It appears that the trial court may have simply transposed the
amount of Husband’s expenses—$2,896—and the amount of
income available to meet the court-imposed support
obligations—$2,569.
20120212-CA 18 2014 UT App 204Barrani v. Barrani
reanalysis, which may include consideration of income
equalization if, in the end, Husband’s and Wife’s expenses
ultimately exceed the available income. See Sellers v. Sellers, 2010
UT App 393, ¶ 3, 246 P.3d 173 (explaining that ‚the courts will
equalize the incomes of the parties [through an award of
alimony] only in those situations in which one party does not
earn enough to cover his or her demonstrated needs and the
other party does not have the ability to pay enough to cover
those needs‛). We therefore remand to the trial court for the
limited purpose of reassessing the amount of monthly alimony
awarded. In remanding on this issue, we are not directing the
trial court to simply make a $300 adjustment based on our
calculation because that calculation is based on our own
perception of the figures used by the court in calculating the
amount of alimony. Rather, the court should reassess the award
of alimony and ensure that the alimony award exceeds neither
Wife’s demonstrated need nor Husband’s ability to pay.
IV. Conclusion
¶31 We affirm the child custody and child support orders
because Husband has not demonstrated any error in the findings
that underlie them or otherwise shown any abuse of discretion.
We also affirm the trial court’s findings relating to Wife’s ability
to earn and Husband’s ability to pay alimony to Wife. We
nevertheless remand for the trial court to reconsider the amount
of alimony awarded, taking into account the apparent
calculation errors identified in this decision.
____________
20120212-CA 19 2014 UT App 204