Christensen v. Christensen , 420 P.3d 106 ( 2018 )

2018 UT App 53THE UTAH COURT OF APPEALS
JACQUELINE E. CHRISTENSEN,
Appellee,
v.
JOHN D. CHRISTENSEN,
Appellant.
Opinion
No. 20151084-CA
Filed March 29, 2018
First District Court, Logan Department
The Honorable Kevin K. Allen
No. 064100474
Jonathan P. Thomas, Attorney for Appellant
Raymond N. Malouf, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGE
MICHELE M. CHRISTIANSEN concurred. JUDGE DAVID N.
MORTENSEN concurred in the result.
ORME, Judge:
¶1 John D. Christensen (Husband) appeals the district court’s
order, in which the court refused to reduce Husband’s alimony
obligation to Jacqueline E. Christensen (Wife). We affirm.
¶2 Husband and Wife divorced in 2008. The divorce decree
requires Husband to pay Wife $1,100 per month in alimony. The
stipulated decree also provides:
When [Wife] becomes eligible to receive Social
Security, alimony will be adjusted to equalize the
Social Security incomes of both of the parties. For
example, if [Husband]’s monthly Social Security
incomes is $2,000.00 and [Wife]’s monthly Social
Christensen v. Christensen
Security incomes is $1,000.00, such shall require an
alimony payment of $500.00 to [Wife] to equalize
the monthly Social Security incomes of the parties.
¶3 Wife became eligible to receive Social Security benefits in
2015. Soon thereafter, Husband filed a motion, seeking to
equalize the parties’ Social Security income and to reduce his
alimony obligation. At the time of his motion, neither party was
actually receiving Social Security income.
¶4 Following a hearing, the district court’s commissioner
concluded that equalizing Social Security incomes would be
premature because neither party had actually started receiving
Social Security income. Husband timely objected to the
commissioner’s ruling, and the district court held a hearing on
the objection. The district court concluded that the language of
the divorce decree did not entitle Husband to reduce his alimony
payment nor did it contemplate Social Security equalization
until both parties began receiving Social Security benefits.
Husband appeals.
¶5 On appeal, “the burden of persuasion falls squarely on an
appellant.” Jensen v. Skypark Landowners Ass’n, 2013 UT App 48,
¶ 7, 299 P.3d 609. See Utah R. App. P. 24(a)(8). Specifically, the
appellant must “convince us that the trial court committed
error.” Nelson v. Liberty Acquisitions Servicing LLC, 2016 UT App
92, ¶ 12, 374 P.3d 27 (citation and internal quotation marks
omitted). As hereinafter explained, Husband has failed to
demonstrate that the district court’s interpretation of the divorce
decree was erroneous as a matter of law.
¶6 Ordinarily, we interpret a divorce decree as we would
any other written instrument, construing it in accordance with
its plain meaning and according no deference to the district
court’s interpretation. See Gardner v. Gardner, 2012 UT App 374,
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¶¶ 14, 24, 294 P.3d 600. But where, as here, the agreement is
ambiguous, 1 the trial court ordinarily considers extrinsic
evidence in an effort to resolve the ambiguities and will make
findings of fact to resolve any disputed evidence, to which
findings we defer. See, e.g., Lyngle v. Lyngle, 831 P.2d 1027, 1030
(Utah Ct. App. 1992) (“[W]hen a divorce decree is ambiguous
extrinsic evidence as to the parties’ intention may be received
and considered.”) (citation and internal quotation marks
omitted). In this case, however, neither party recognized the
ambiguity within the provision at issue, requested an
evidentiary hearing, or endeavored to introduce extrinsic
evidence to clarify their intent and aid the court in interpreting
the provision. Instead, Husband and Wife each proceeded as
though the meaning of the divorce decree was clear on its face
and capable of construction as a matter of law. To be sure, each
advanced a different interpretive theory. As teed up by the
parties, then, the question for the district court was which of the
two interpretations reflected the plain meaning of the decree.
Thus, we review the district court’s interpretation of the divorce
decree without the benefit of findings of fact based on extrinsic
evidence as to what the parties intended.
¶7 Husband argues that the language of the divorce decree is
“very specific.” He first claims that equalization of Social
1. The ambiguity is threefold: Was the contemplated adjustment
to be triggered when Wife first became eligible for Social
Security benefits or only when one or both of the parties actually
started receiving Social Security benefits? Would the so-called
alimony contemplated in the provision be in addition to any
regular alimony then being received by Wife, or would this
alimony supplant any regular alimony being received by Wife?
Why was the allocation of Social Security benefits treated as a
matter of alimony rather than as the more straightforward
allocation of retirement benefits?
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Security benefits should have occurred when Wife became
eligible to receive income from Social Security, not when she
actually chose to start receiving it. In support of his position,
Husband points to this language in the decree: “When [Wife]
becomes eligible to receive Social Security, alimony will be
adjusted to equalize the Social Security incomes of both of the
parties.”
¶8 While we think that Husband’s interpretation is plausible,
Husband has not shown that the district court’s acceptance of
the contrary interpretation advanced by Wife was wrong as a
matter of law. The latter portion of the same sentence, with our
emphasis, indicates that “the Social Security incomes” will be
equalized—not the potential incomes. Additionally, the example
set forth in the decree itself suggests that receiving income from
Social Security is a prerequisite to equalization. The decree states
that “if [Husband]’s monthly Social Security incomes is $2,000.00
and [Wife]’s monthly Social Security incomes is $1,000.00, such
shall require an alimony payment of $500.00 to [Wife] to equalize
the monthly Social Security incomes of the parties.” This
language focuses on the income each party receives from Social
Security, and it does not allude to equalizing Social Security
income that is merely theoretical, i.e., benefits that a party might
be entitled to receive but has not yet opted to receive. 2
¶9 Husband also claims that the provision mandating the
equalization of Social Security benefits constituted an alimony
payment that would supplant, rather than supplement, his
2. Deferring Social Security benefits is not necessarily a bad idea.
As we understand it, the longer one puts off receiving Social
Security income, the greater one’s benefit will be once payment
starts. See Retirement Planner: Delayed Retirement Credits, Social
Security Administration, https://www.ssa.gov/planners/retire/
delayret.html [https://perma.cc/7KUS-5GWR].
20151084-CA 4 2018 UT App 53Christensen v. Christensen
existing alimony obligation. His interpretation relies on the same
portion of the decree, which instructs that “alimony will be
adjusted to equalize the Social Security incomes of both of the
parties.” Husband asserts that a contrary interpretation would
require him to use his other retirement funds to pay alimony
even though those funds were awarded to him as separate
property.
¶10 Again, although Husband’s interpretation is plausible, he
has not established that the district court’s contrary
interpretation, in accordance with the interpretative theory
advanced by Wife, was erroneous as a matter of law. There is no
language in the decree that expressly indicates that the equalized
Social Security payment replaces Husband’s prior alimony
obligation. If anything, the word “adjusted” suggests just the
opposite. Additionally, while we are not certain why the
equalization of Social Security income is classified as alimony, 3
the example included in the decree states, with our emphasis,
that such equalization will serve as “an alimony payment.” This
could be construed as contemplating an additional, rather than
the exclusive, alimony payment. And Husband’s interpretation
would essentially create a self-activating provision that would
automatically reduce his alimony obligation without considering
the parties’ needs and circumstances. Husband’s argument
concerning his retirement benefits is likewise unconvincing. As
we have stated before, having to use separate property to pay
alimony does not foreclose a party’s obligation to pay alimony.
See Jensen v. Jensen, 2007 UT App 377, ¶¶ 8–10, 173 P.3d 223.
3. It was suggested at oral argument by the author of this
opinion that this characterization gave Husband the benefit of
deducting the “alimony” payments on his federal income tax
return and also created the possibility that the payment
obligation might end if Wife remarried. To these observations,
counsel for Husband responded, “[Y]ou’re overthinking it.”
20151084-CA 5 2018 UT App 53Christensen v. Christensen
¶11 This is clearly a situation where more care in drafting the
stipulated decree would have obviated the present dispute. And
as indicated, it would have been an appropriate case for the
district court to have conducted an evidentiary hearing, received
extrinsic evidence, and issued findings of fact regarding the
intentions of the parties. On appeal, we would likely have been
persuaded by the argument that the district court erroneously
interpreted an ambiguous document as though it were
unambiguous and could be interpreted as a matter of law―had
that objection been preserved below and briefed on appeal. We
may even have been receptive to an argument that such an
interpretative approach constituted plain error and could be
reviewed even absent the claim’s preservation below. See, e.g.,
State v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (providing that the
preservation rule applies to every claim unless a party can
demonstrate that plain error occurred). But Husband has not
raised this argument on appeal, and as we have consistently
stated, we will not consider plain error sua sponte. See, e.g., State
v. Blubaugh, 904 P.2d 688, 700–01 (Utah Ct. App. 1995).
¶12 The district court decided the issue as it was presented by
the parties. Husband has not demonstrated that, in doing so, the
district court erred as a matter of law.
¶13 Affirmed. 4
4. Wife seeks an award of attorney fees incurred on appeal.
“Ordinarily, we award appellate attorney fees and costs when a
party was awarded fees and costs below and then prevails on
appeal.” Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337 P.3d 296.
Because the district court expressly declined to award Wife
attorney fees below, and because she has not persuaded us that
an exception to this general rule is merited, we likewise deny her
request for fees.
20151084-CA 6 2018 UT App 53