Eberhard v. Eberhard , 2019 UT App 114 ( 2019 )

2019 UT App 114THE UTAH COURT OF APPEALS
TODD EBERHARD,
Appellant,
v.
LORI ANN EBERHARD,
Appellee.
Opinion
No. 20170721-CA
Filed June 27, 2019
Third District Court, Salt Lake Department
The Honorable Paige Petersen
No. 024906303
David Pedrazas, Attorney for Appellant
Suzanne Marelius, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
POHLMAN, Judge:
¶1 Todd Eberhard and Lori Ann Eberhard divorced in 2003
after twenty-nine years of marriage. The stipulated divorce
decree provided that Todd 1 would pay $4,200 in monthly
alimony to Lori and that upon Todd’s retirement at age 65,
“spousal support shall be reviewed and modified as provided by
law.” After the divorce, Todd continued to work as a physician,
while Lori, who had no prior work experience, obtained a job in
customer service four years later, in 2007.
1. Because the parties share a surname, we refer to each party by
his or her first name, as is our practice in such situations. We
intend no disrespect by the apparent informality.
Eberhard v. Eberhard
¶2 In anticipation of his planned retirement in 2016, Todd
filed a petition to modify the decree, seeking to terminate or
reduce alimony once he and Lori began receiving funds from his
pension. After a bench trial, the district court denied Todd’s
request to modify alimony at that time, ordering Todd to
continue paying $4,200 in alimony. But the court ordered that
when Lori “reaches her full retirement age of 66 and is eligible to
receive a social security retirement payment,” Todd’s alimony
payment would be reduced by that amount. The court further
ordered Todd to pay half of Lori’s attorney fees and costs
incurred defending against his petition to modify. Todd appeals,
challenging the court’s alimony and attorney fees decisions. We
affirm in part and remand for the entry of additional findings of
fact, without restriction to any modifications the court deems
appropriate.
STANDARDS OF REVIEW
¶3 District courts have “considerable discretion in
determining alimony.” Boyer v. Boyer, 2011 UT App 141, ¶ 9, 259
P.3d 1063 (cleaned up). This court reviews “a district 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 [Utah
appellate courts] have set and has supported its decision with
adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79,
¶ 84 (cleaned up). Similarly, we “generally review a district
court’s determination to modify or not to modify a divorce
decree for an abuse of discretion.” 2 Fish v. Fish, 2016 UT App 125,
¶ 5, 379 P.3d 882.
2. Todd also contends that the district court erred in denying his
motion for a new trial and his motion to amend the findings and
(continued…)
20170721-CA 2 2019 UT App 114Eberhard v. Eberhard
¶4 When considering a challenge to the sufficiency of the
evidence, “we will not set aside findings of fact, whether based
on oral or documentary evidence, unless they are clearly
erroneous.” Dahl, 2015 UT 79, ¶ 121; see also Shuman v. Shuman,
2017 UT App 192, ¶ 3, 406 P.3d 258. A district court’s “factual
determinations are clearly erroneous only if they are in conflict
with the clear weight of the evidence, or if [we have] a definite
and firm conviction that a mistake has been made.” Taft v. Taft,
2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).
¶5 The district court must “make adequate findings on all
material issues of alimony to reveal the reasoning followed in
making the award.” Id. ¶ 14 (cleaned up). “Findings are
adequate only if they are sufficiently detailed and include
enough subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was reached.” Id.(cleaned up). Whether the district court’s findings are adequate
presents a question of law. Dole v. Dole, 2018 UT App 195, ¶ 3,
437 P.3d 464; Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d
478.
¶6 We review the district court’s award of attorney fees
under Utah Code section 30-3-3, including the amount of the
award, for abuse of discretion. Dahl, 2015 UT 79, ¶ 168; Davis v.
Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716.
(…continued)
judgment, both of which raised issues with the district court’s
alimony decision. As with the court’s alimony decision, we
review its denial of both post-trial motions for abuse of
discretion. See Eskelsen v. Theta Inv. Co., 2019 UT App 1, ¶ 22, 437
P.3d 1274 (motions to amend findings and judgment); Hartvigsen
v. Hartvigsen, 2018 UT App 238, ¶ 5, 437 P.3d 1257 (motions for a
new trial).
20170721-CA 3 2019 UT App 114Eberhard v. Eberhard
ANALYSIS
I. Alimony
¶7 Relevant to this appeal, the Utah Code instructs district
courts to consider certain factors—known as the Jones factors—
when determining alimony, including “the recipient’s earning
capacity or ability to produce income,” “the financial condition
and needs of the recipient spouse,” and “the ability of the payor
spouse to provide support.” 3 Utah Code Ann. § 30-3-5(8)(a)(i)–
(iii) (LexisNexis 2013); see also Jones v. Jones, 700 P.2d 1072, 1075
(Utah 1985) (listing these factors later codified in Utah Code
section 30-3-5). The court’s findings on each statutory factor
must be sufficiently detailed “to enable a reviewing court to
ensure that the [district] court’s discretionary determination was
rationally based upon these factors.” Keyes v. Keyes, 2015 UT App
114, ¶ 33, 351 P.3d 90 (cleaned up).
¶8 The Utah Code also instructs that district courts
should generally “look to the standard of living, existing at
the time of separation, in determining alimony.” Utah Code
Ann. § 30-3-5(8)(e). “However, the court shall consider
all relevant facts and equitable principles and may, in
its discretion, base alimony on the standard of living that existed
3. The other factors that the court must consider include the
following: “(iv) the length of the marriage; (v) whether the
recipient spouse has custody of minor children requiring
support; (vi) whether the recipient spouse worked in a business
owned or operated by the payor spouse; and (vii) whether the
recipient spouse directly contributed to any increase in the payor
spouse’s skill by paying for education received by the payor
spouse or enabling the payor spouse to attend school during the
marriage.” Utah Code Ann. § 30-3-5(8)(a)(iv)–(vii) (LexisNexis
2013).
20170721-CA 4 2019 UT App 114Eberhard v. Eberhard
at the time of trial.” 4 Id.; see also Dahl v. Dahl, 2015 UT 79, ¶ 111
(“[W]hile an alimony award would ideally allow both spouses to
maintain the standard of living enjoyed during the marriage,
the court is nevertheless obligated to support any alimony
award with specific factual findings as to each statutory factor
and is permitted to deviate from the general rule in light of
the relevant facts and equities.”). “Furthermore, the award
should advance, as much as possible, the purposes of alimony
by assisting the parties in achieving the same standard of living
they enjoyed during the marriage, equalizing the parties’
respective standards of living, and preventing either spouse
from becoming a public charge.” Hansen v. Hansen, 2014 UT App
96, ¶ 6, 325 P.3d 864 (cleaned up). These same considerations
apply in later modification proceedings. Nicholson v. Nicholson,
2017 UT App 155, ¶ 17, 405 P.3d 749.
¶9 Here, the district court relied on the parties’ testimony
at the trial on the petition to modify to determine their standard
of living at the time of their separation. Specifically, the court
found that “during the marriage these parties enjoyed a good
lifestyle with a nice home for their five-person family, a paid-
for car, regular vacations, and they paid their bills in full
every month.”
¶10 The court then considered the Jones factors. It found
that every month Lori, who was age 63 at the time of trial,
earned $1,621.88 from her customer service job, received $4,200
4. This court has understood this statute “to allow a court the
discretion to consider the standard of living at the time the
modification petition is tried” and noted that “[s]uch a reading
comports with the rationale underlying alimony modification
proceedings: adjustment to reflect changed financial
circumstances.” Nicholson v. Nicholson, 2017 UT App 155, ¶ 20,
405 P.3d 749.
20170721-CA 5 2019 UT App 114Eberhard v. Eberhard
in alimony, and received $1,533.74 as her share of Todd’s
pension. After deducting taxes, Lori was left with a net monthly
income of $6,141. Lori also had $330,000 in retirement accounts,
which was her share of the divorce settlement. Lori had incurred
loans and debt after the divorce, and her reasonable monthly
expenses amounted to $5,309—an amount that the court found
was “less than what [Lori] requires to live commensurate with
the marital standard of living.”
¶11 As for Todd, who was 66 years old and remarried,
the court found that every month he received $3,827.71 from
his pension and $2,326 from Social Security, and drew $3,500
from various retirement accounts. After deducting taxes, Todd
had a net monthly income of $7,654. In addition, the court
found that Todd had $1.5 million in retirement accounts from
which he could draw “variable” amounts “at his discretion.”
Todd testified that he was supporting his current spouse
who was not employed. The court found Todd’s reasonable
monthly expenses to be $8,041—a figure that did not include the
alimony payment. The court also found that he had “a very
secure and comfortable lifestyle” and “no debt.” As a result, the
court found that Todd “has the ability to pay $4,200 [in] monthly
alimony.”
¶12 In arriving at its decision, the district court deemed
two other statutory factors “significant.” In particular, the
court considered “whether the recipient spouse directly
contributed to any increase in the payor spouse’s skill by paying
for education received by the payor spouse or enabling
the payor spouse to attend school during the marriage,”
Utah Code Ann. § 30-3-5(8)(a)(vii), and whether “one spouse’s
earning capacity has been greatly enhanced through the efforts
of both spouses during the marriage,” id. § 30-3-5(8)(g). The
court determined that both of these factors were “applicable and
support no reduction of alimony in this case.”
20170721-CA 6 2019 UT App 114Eberhard v. Eberhard
¶13 Based on these findings, the court denied Todd’s request
to terminate or reduce alimony at that time. 5 It determined that
Todd will continue to pay $4,200 in monthly alimony for three
years—until Lori reaches age 66 and qualifies for Social Security.
At that point, Lori will receive about $1,319 per month from
Social Security, and the court ordered that Todd will then be
allowed to reduce the alimony payment by the amount Lori
receives from Social Security. In so doing, the court stated that
Lori’s income from her job, alimony, and Todd’s pension are
presently “needed to meet her reasonable expenses,” but even
then “she will still not have the standard of living of the
marriage.” It noted that Lori’s needs “include the shortfall she
has accumulated over the years since the divorce” and that Lori
was “presently only barely meeting her needs for that debt
service and reasonable monthly expenses.” Given these
considerations, the court stated its “intent to move [Lori] closer
to being able to pay off her debt and better achieve a standard of
living commensurate with the marital standard of living in this
alimony award.” However, the court made no specific finding as
to what Lori’s reasonable total monthly needs would be,
observing only that her needs were greater than her current
monthly expenses of $5,309.
¶14 We address Todd’s challenges to the alimony award as
follows: (A) the marital standard of living, (B) Lori’s earning
capacity, (C) Lori’s needs, (D) Todd’s ability to provide support,
and (E) the parties’ line-item expenses. We affirm the district
court in most respects, but we remand for the court to provide
5. Given the language in the decree stating that “spousal support
shall be reviewed and modified” upon Todd’s retirement, the
parties appear to assume that Todd’s retirement opened the door
for the district court to modify alimony. We have no occasion to
question that assumption in this case.
20170721-CA 7 2019 UT App 114Eberhard v. Eberhard
additional findings on the issues of Lori’s needs and Todd’s
ability to pay.
A. The Marital Standard of Living
¶15 Todd contends that the district court’s findings about the
parties’ standard of living at the time of divorce—particularly
regarding whether the cars were paid off and whether the
parties paid their bills in full—were not supported by sufficient
evidence. Todd also contends, in a conclusory manner, that the
district court’s findings were inadequate.
¶16 As stated, the court found that “[t]he trial testimony
confirmed that during the marriage these parties enjoyed a good
lifestyle with a nice home for their five-person family, a paid-for
car, regular vacations, and they paid their bills in full each
month.” The court noted that the parties’ testimonies in this
regard were “quite consistent” and were sufficient to support its
findings regarding the standard of living at the time of the
divorce.
¶17 Todd has not shown clear error in the district court’s
findings on this score. First, Todd overlooks the fact that Lori
testified that during the marriage she always had a car and they
“paid for [their] cars outright[].” Second, Todd ignores Lori’s
testimony that, except for the house, they had no debt, “paid off
[their] credit cards,” and had funds available for unexpected
expenses like replacing tires on a car. We conclude that Lori’s
testimony in this regard is sufficient evidence to support the
district court’s findings. See Bond v. Bond, 2018 UT App 38, ¶ 10,
420 P.3d 53 (reasoning that “[b]ecause the trial court’s factual
findings are clearly supported by [a witness’s] testimony, we
cannot conclude that they lack general evidentiary support”); see
also Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994(“[A]n appellate court’s role is not to reweigh the evidence
presented at trial but only to determine whether the court’s
20170721-CA 8 2019 UT App 114Eberhard v. Eberhard
decision is supported by the evidence, leaving questions of
credibility and weight to the trial court.”).
¶18 Todd’s general challenge to the adequacy of the district
court’s findings also fails. The court explicitly stated that in
considering the parties’ standard of living existing at the time of
divorce, it was relying on the parties’ trial testimony, and Todd
has not established that the court failed to show “the steps by
which the ultimate conclusion on each factual issue was
reached.” See Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890(cleaned up). We therefore reject Todd’s arguments about the
sufficiency of the evidence and adequacy of the district court’s
findings regarding the parties’ standard of living.
B. Lori’s Earning Capacity
¶19 Todd contends that in considering Lori’s earning capacity
and ability to produce income, the district court “should have
included [Lori’s] income from Social Security and the unearned
income from her retirement [accounts].”
¶20 District courts generally have “broad discretion in
selecting an appropriate method of assessing a spouse’s
income.” Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255; see
also, e.g., Davis v. Davis, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716(concluding that “while the trial court could have considered [a
portion of the wife’s monthly paycheck that she saved for
retirement] as income, the court did not exceed its permitted
range of discretion in choosing not to do so” (cleaned up)).
Indeed, Utah law specifically grants district courts “flexibility to
consider all sources of income” without mandating that the court
treat all sources as income for purposes of calculating alimony.
See Busche v. Busche, 2012 UT App 16, ¶ 31, 272 P.3d 748; see also
Crompton v. Crompton, 888 P.2d 686, 689 (Utah Ct. App. 1994)
(explaining that “it would be inappropriate for an appellate
court to tie the hands of a [district] court” by requiring it in
20170721-CA 9 2019 UT App 114Eberhard v. Eberhard
every case to confine its consideration of income in a certain
way). Such matters are “left to the [district] court’s judgment,”
Busche, 2012 UT App 16, ¶ 31, and will not be set aside absent “a
clear and prejudicial abuse of discretion,” Griffith v. Griffith, 959
P.2d 1015, 1019 (Utah Ct. App. 1998), aff’d, 1999 UT 78, 985 P.2d
255.
¶21 In support of his position, Todd relies on Utah caselaw
stating that “when determining an alimony award, it is
appropriate and necessary for [district] courts to consider all
sources of income.” Hansen v. Hansen, 2014 UT App 96, ¶ 14, 325
P.3d 864 (cleaned up). It is correct that district courts “must be
able to consider all sources of income that were used by the
parties during their marriage to meet their self-defined needs,
from whatever source—overtime, second job, self-employment,
etc., as well as unearned income.” Crompton, 888 P.2d at 689. But
while this caselaw directs district courts to consider all sources of
income when determining alimony, it does not dictate that all
sources of income be counted as income received by a spouse for
that purpose. Rather, we read this caselaw as preserving a
district court’s broad discretion to treat sources of income as the
court sees fit under the circumstances. See Griffith, 1999 UT 78,
¶ 19; Busche, 2012 UT App 16, ¶ 31.
¶22 In calculating Lori’s earning capacity and ability to
produce income, the district court considered and declined to
include as income any funds that Lori could potentially draw
from her retirement accounts or that she could receive by
electing to collect Social Security benefits early. The court found
that if Lori began receiving Social Security benefits at her
then-current age of 63, she would receive less than she would if
she waited until age 66. As the court stated, “[t]he parties did not
dispute that at [Lori’s] current age she would receive 37.8% of
the 50% retirement benefit she could claim on [Todd’s] earnings
record” and it was “undisputed that if she waited until age 66,
her full retirement age, she could claim the full 50% on that
20170721-CA 10 2019 UT App 114Eberhard v. Eberhard
earning record.” 6 Lori would “suffer a financial penalty” if she
began drawing on Social Security benefits before age 66. As a
result, the court was unwilling “to require [Lori] to make an
unwise financial decision” and declined to include these sources
in its calculation of Lori’s income.
¶23 Todd has not shown an abuse of discretion under these
circumstances. Lori was not receiving Social Security benefits
and would have faced reduced benefits if she began receiving
them early. Given the fact that the court was concerned that
Lori’s “needs have not been met by the alimony order made at
the divorce,” the court considered Lori’s potential Social Security
benefits and reasonably decided not to impose an “unwise
financial decision” on Lori by requiring her to start receiving a
smaller amount of Social Security benefits than she otherwise
would be entitled to take three years later.7
¶24 Todd also has not shown that the district court abused its
discretion by choosing not to include in Lori’s income any
unearned income generated from her retirement accounts.
Though Todd urged the court to assume “a modest 6% interest”
rate on Lori’s retirement accounts, he did not provide evidence
6. Under Social Security Administration rules, a person may
retire at any time between age 62 and full retirement age, but if a
person begins collecting benefits early, those benefits are
reduced. See Benefits Planner: Retirement, Social Security
Administration, https://www.ssa.gov/planners/retire/agereducti
on.html [https://perma.cc/B5RT-SUQY]. See generally 20 C.F.R.
§ 404.409 (2018); id. § 404.410.
7. The court further observed that Lori was trying to work as
long as she could and that when she retires and takes Social
Security, those benefits will “cancel” or “replace” her salary from
her customer service job.
20170721-CA 11 2019 UT App 114Eberhard v. Eberhard
in support of his request, and Lori did not agree with that figure.
At trial, Lori testified that two-thirds of her retirement account
was tied up in annuities from which she would not receive
income until she reaches age 70. She testified that she had not yet
drawn on the other one-third of her retirement, and when asked
whether she was earning interest, she responded that her
account “fluctuates up and down” and could not say whether
she had realized an increase. In light of the record and the
district court’s “broad discretion in selecting an appropriate
method of assessing a spouse’s income,” Griffith, 1999 UT 78,
¶ 19, the court did not exceed the bounds of its discretion in
declining to treat any unearned income on Lori’s retirement
accounts as income for purposes of determining alimony.
¶25 Moreover, Todd has cited no authority for the proposition
that a court must require a spouse to claim early Social Security
benefits or begin withdrawals from retirement accounts. We
have located no such Utah authority. But we note that authority
from other jurisdictions counters Todd’s position. See, e.g.,
Huertas Del Pino v. Huertas Del Pino, 229 So. 3d 838, 839–42 (Fla.
Dist. Ct. App. 2017) (holding that, for purposes of awarding
alimony, income should not be imputed to an ex-spouse “based
on her eligibility for Social Security retirement benefits she had
not yet applied to receive” when “there was no evidence of any
bad faith” on the ex-spouse’s part and when “she articulated a
rational reason for delaying her application for Social Security
benefits—namely, that she would receive greater benefits by
postponing her receipt of benefits”); McKernan v. McKernan, 135
A.3d 1116, 1117–18 (Pa. Super. Ct. 2016) (locating “no authority
empowering a trial court to order [the wife] to apply for and
obtain Social Security Retirement benefits prior to reaching full
retirement age,” or requiring the inclusion as part of the wife’s
income the benefit amount for which she is eligible); see also, e.g.,
Gutierrez v. Gutierrez, 972 P.2d 676, 681 (Ariz. Ct. App. 1998)
(stating that a receiving spouse “should not be compelled to
withdraw the money in [a] retirement account to supplement her
20170721-CA 12 2019 UT App 114Eberhard v. Eberhard
modest income” and that the “spouse should not be expected to
live off both the principal, and interest, exhausting whatever
financial reserves she possesses to the extent that when she no
longer had any earning capacity there would be nothing left
upon which she could draw” (cleaned up)); In re Marriage of
Novak, 83 S.W.3d 597, 601 (Mo. Ct. App. 2002) (explaining that
income from retirement accounts “must be considered in
calculating benefits” but that “trial courts are not required to
impute income [from] retirement and IRA accounts in every
case” given their broad discretion in this area).
¶26 For these reasons, we conclude that the district court
acted within its discretion when it declined to include Social
Security and unearned income on Lori’s retirement accounts as
part of her current income. Given our conclusion in this regard,
we likewise conclude that the district court did not abuse its
discretion in denying Todd’s motion for a new trial based on
these same issues.
C. Lori’s Needs
¶27 Next, Todd contends that the district court erred in
finding that Lori’s needs were unmet when evaluating her
financial condition and needs. Todd’s argument has three parts.
First, he relies on Utah Code section 30-3-5(8)(i)(ii) to argue that
the district court erroneously considered Lori’s needs that did
not exist at the time of the divorce. Second, he argues that the
evidence was insufficient to support the court’s finding that
Lori’s needs were not being met at the time the decree was entered.
Third, he contends that the court’s findings regarding Lori’s
needs are not adequate.
1. Utah Code Section 30-3-5(8)(i)(ii)
¶28 Todd first claims that the district court “improperly
addressed [Lori’s] needs . . . that did not exist at the time the
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decree was entered.” Todd bases this argument on Lori’s
purchase of a furnace and air conditioner, her periodic visits to a
chiropractor, her car loan for a new vehicle, and her “debt
incurred after voluntarily being unemployed for 4 years after the
divorce.” Citing Utah Code section 30-3-5(8)(i)(ii), Todd then
concludes that Lori “failed to cite any extenuating circumstances
that would allow the court to address [her] needs . . . that didn’t
exist at the time of divorce.”
¶29 Utah Code section 30-3-5(8)(i)(ii) provides that “[t]he
court may not modify alimony or issue a new order for alimony
to address needs of the recipient that did not exist at the time the
decree was entered, unless the court finds extenuating
circumstances that justify that action.” Utah Code Ann.
§ 30-3-5(8)(i)(ii) (LexisNexis 2013). In other words, absent
extenuating circumstances, the statute “generally prevents a
district court from modifying an alimony award to account for
new needs.” 8 Fish v. Fish, 2016 UT App 125, ¶ 6, 379 P.3d 882.
¶30 In a pretrial motion in limine, Todd asserted that, under
section 30-3-5(8)(i)(ii), the court was “prohibited from addressing
[Lori’s] increased needs . . . without finding extenuating
circumstances.” According to the motion, the district court
“should only review whether [Todd] has the ability to pay the
current amount of ordered alimony and whether [Lori’s] need
for $4,200 per month has been reduced based upon the pension
benefits received from [Todd’s] retirement and [Lori’s] Social
Security.” Before the presentation of evidence at trial, the court
ruled that it would not exclude any evidence and that it would
8. This court has previously noted that this statute “does not
appear to forbid a court from considering the recipient spouse’s
new needs in its decision not to modify.” Fish v. Fish, 2016 UT
App 125, ¶ 8 n.3, 379 P.3d 882.
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figure out later “how the law should apply to whatever facts”
were adduced at trial.
¶31 On appeal, Todd asserts that the district court did not find
extenuating circumstances under section 30-3-5(8)(i)(ii) and that
the court erroneously addressed Lori’s needs that did not exist at
the time of divorce. We reject this argument because it rests on a
false premise, namely, that the district court accounted for Lori’s
needs that did not exist at the time of the divorce. In fact, the
district court explained, in a post-trial order, with regard to
section 30-3-5(8)(i)(ii) that “[n]ot knowing before trial what
evidence of increased needs might be submitted, the Court
agreed that any increased needs not existing at the time of the
divorce would not be used to increase the alimony award unless
it was justified by extenuating circumstances.” The court further
explained that “[n]one of [Lori’s] current expenses were new,
increased needs that did not exist at the time of the divorce,”
given that “[t]hey were basic needs that existed at the time of the
divorce,” including the needs for “a home, heating and air
conditioning in the home, a car, food, and basic medical care.” 9
¶32 The court’s decision was “not based on any new needs,
but based on exactly the same kind of needs that [Lori] had in
2003.” Because Lori had been “forced to take out a second
mortgage” and incur credit card debt to meet basic needs, the
court found that Lori’s standard of living had “fallen” from the
lifestyle she enjoyed at the time of the divorce and that Lori’s
needs “have not been adequately provided for at the marital
9. Because the parties stipulated to the divorce decree, the
district court entered the decree in 2003 without making findings
regarding Lori’s needs at the time of the divorce. As a result, in
ruling on Todd’s petition to modify, the court effectively found
that Lori’s current needs existed at the time of the divorce, and it
analyzed whether Lori could meet her needs.
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standard since the time of the divorce.” Thus, instead of
addressing needs that did not exist at the time of the divorce, the
court found on Todd’s petition to modify that the stipulated
alimony had never met Lori’s needs because it still did not
“bring[] her up to [the marital] standard of living.” 10 Ultimately,
new or “increased needs did not factor into” or underlie the
court’s decision. Because we disagree with Todd’s
characterization of the district court’s decision, Todd has not
shown that it ran afoul of section 30-3-5(8)(i)(ii).
¶33 Relatedly, Todd contends that the district court erred in
denying his motion for a new trial, which raised three grounds
related to section 30-3-5(8)(i)(ii). He argued that a new trial was
justified due to “an irregularity in the proceeding,” insufficient
evidence, and an error in law. 11 Todd’s motion was largely based
on his understanding that evidence of Lori’s increased needs
10. Before the district court, Todd argued that the $4,200 of
alimony awarded in the decree defined or equated to Lori’s
needs at the time of the divorce and that Lori’s receipt of
$1,533.74 from his pension meant that she had an increase in
needs since that time. The court rejected these arguments,
explaining that the stipulated amount of alimony “ended up not
being enough to keep her in the lifestyle that she was
accustomed to” and that, even with the pension, Lori had
“exactly the same kind of needs that she had in 2003.”
11. Under rule 59 of the Utah Rules of Civil Procedure, a new
trial may be granted due to “irregularity in the proceedings of
the court, jury or opposing party, or any order of the court, or
abuse of discretion by which a party was prevented from having
a fair trial”; due to “insufficiency of the evidence to justify the
verdict or other decision”; or when “the verdict or decision is
contrary to law or based on an error in law.” Utah R. Civ. P.
59(a)(1), (6), (7).
20170721-CA 16 2019 UT App 114Eberhard v. Eberhard
would be considered only upon a finding of extenuating
circumstances. According to Todd, he “shifted [his] strategy” in
response to the district court’s ruling on his motion in limine,
and he “focuse[d] on disproving extenuating circumstances”
instead of submitting evidence of his ability to pay alimony and
contesting more of Lori’s expenses. In attacking the court’s
denial of his motion for a new trial, Todd again rests his
arguments on the premise that the court addressed increased
needs.
¶34 But Todd again misreads the district court’s decision. The
court did not agree to exclude any evidence when it ruled on
Todd’s motion in limine, and it ultimately did not address Lori’s
needs that did not exist at the time of divorce. Under these
circumstances, Todd has not shown that the court abused its
discretion in denying him a new trial under any of his proposed
justifications or theories.
2. Sufficiency of the Evidence
¶35 Second, Todd argues that the evidence was insufficient to
support the court’s finding that Lori’s needs were not being met
at the time of the decree. The court found that although Lori’s
needs at the time of divorce were not expressly determined in
2003, the decree’s alimony award of $4,200 “ended up not being
enough to keep [Lori]” living at the marital standard. The
court stated that it drew this finding from the evidence that
Lori had a second mortgage on her house; she “kept the same
car for 12 years, she bought a used car, [and] she’s got a loan on
[it]”; she had credit card debt; 12 and she has a “more modest
12. Todd makes much of the fact that Lori’s credit card debt
increased substantially between 2014 and 2016, suggesting that
her debt did not increase between 2003 and 2014 and that her
needs were met in 2003. But Todd overlooks that Lori incurred
(continued…)
20170721-CA 17 2019 UT App 114Eberhard v. Eberhard
standard of living” compared to that of the marriage. Given
that the marital standard of living included paid-for cars
and bills paid in full each month, and that Lori had been
“borrowing to fill the gap in her needs created by the divorce,”
the district court did not clearly err in finding that Lori’s needs at
the time of the divorce had not been met by the $4,200 alimony
award.
3. Adequacy of the Findings
¶36 Third, Todd claims that the district court’s findings
regarding Lori’s needs are inadequate to show that her needs
were not being met. In considering this issue, we bear in mind
that this court has stated that a district court “may not merely
restate the recipient spouse’s testimony regarding her monthly
expenses”; instead, “the court must state that the calculation of
monthly expenses is reasonable and must explain how it arrived
at the monthly amount, or at least from the record, allow us to
make this determination ourselves.” Rehn v. Rehn, 1999 UT App
41, ¶ 7, 974 P.2d 306 (cleaned up). Further, we are mindful that
“regardless of the payor spouse’s ability to pay more, the
recipient spouse’s demonstrated need must constitute the
maximum permissible alimony award.” Jensen v. Jensen, 2008 UT
App 392, ¶ 13, 197 P.3d 117 (cleaned up). Indeed, “[a]n alimony
award in excess of the recipient’s need is a basis for remand even
when the payor spouse has the ability to pay.” Barrani v. Barrani,
2014 UT App 204, ¶ 30, 334 P.3d 994.
¶37 Todd focuses his attack on Paragraph 18 of the court’s
findings, which states:
(…continued)
other debts—the second mortgage and the car loan—between
2003 and 2014.
20170721-CA 18 2019 UT App 114Eberhard v. Eberhard
The Court finds that in many ways [Lori’s] needs
have not been met by the alimony order made at
the divorce, and that her standard of living has
fallen below the quality of life and standard of
living of the marriage to which she is entitled. Her
Financial Declaration shows significant debt
consisting of a first and second mortgage on her
residence, a vehicle loan with a balance of $17,229,
credit card debt of $16,296, and her attorney fees
have been put on a credit card. Her Financial
Declaration showed a gap between her net income
of $4,608, before receipt of pension, and expenses
of $5,309 showing a monthly shortfall. Her listing
of current expenses shows $220 per month as the
minimum payment on her credit cards which will
not realistically pay the debt. The Court finds [Lori]
has been borrowing to fill the gap in her needs
created by the divorce. It appears that she has a
shrunken standard of living compared to the
marital standard of living as she has incurred loans
and debt, which was not part of the marital
standard. [Lori] has not been extravagant. Her
stated needs on the Declaration of $5,309 are very
reasonable and, in fact, less than what she requires
to live commensurate with the marital standard of
living and the Court finds a historic gap and
income shortfall since the divorce which has
created debt. It is evident that [Lori’s] debt will not
be paid off at the minimal contribution level, that
any future emergency such as a flat tire, medical
expense, replacement of a furnace or attorney fees
requires her to add to her debt as she does not have
resources to pay for such events.
Under the district court’s math, Lori had a monthly shortfall of
$701 before she started receiving her portion of Todd’s pension.
20170721-CA 19 2019 UT App 114Eberhard v. Eberhard
And after she started receiving money from the pension, she had
a surplus of $832—a result that appears in conflict with the
principle that alimony may not exceed the recipient spouse’s
needs. See id.; Jensen, 2008 UT App 392, ¶ 13.
¶38 Nevertheless, we do not understand the court to have
intended to award Lori more than her needs. Although there
appears to be a surplus, awarding her more than her stated
monthly expenses appears to be consistent with the court’s
overall intention to award sufficient alimony to help Lori retire
debts and achieve the marital standard of living. Indeed, the
court expressed its intention “to move [Lori] closer to being able
to pay off her debt and better achieve a standard of living
commensurate with the marital standard of living in this
alimony award.”
¶39 Yet the district court’s findings regarding Lori’s needs are
not sufficiently detailed to “disclose the steps” the court took to
reach its ultimate conclusion that the $4,200 in alimony was
required to meet those needs. See Rayner v. Rayner, 2013 UT App
269, ¶ 11, 316 P.3d 455 (cleaned up). The court relied on Lori’s
financial declaration to find that her existing reasonable monthly
expenses were $5,309, but the court found that this amount was
“less than what she requires to live commensurate with the
marital standard of living.” The court also found that Lori’s $220
monthly payment on her credit cards “will not realistically pay
the debt” and that Lori was “only barely meeting her needs for
[her] debt service.” But the court’s findings do not specify how
much more Lori actually needs each month to pay down her
debt and elevate herself to the marital standard of living, which
includes living without debt.
¶40 It may be that the court concluded that the $832 surplus
was enough for Lori to reach those goals. It also may be that the
court concluded that the additional $832 still did not achieve
those goals. Without the district court more precisely spelling
20170721-CA 20 2019 UT App 114Eberhard v. Eberhard
out the amount that Lori realistically requires to pay off the debt
and to enjoy the marital standard of living, we are unable to
discern whether the alimony award, in fact, exceeds her needs.
We thus cannot conduct meaningful appellate review and
cannot ensure that the district court’s discretionary
determination on alimony was “rationally based.” See Fish v.
Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882. Accordingly, we
remand for the district court to enter more detailed findings on
this issue and to alter its conclusions as may be necessary. See
Barrani, 2014 UT App 204, ¶ 30; Rayner, 2013 UT App 269, ¶ 12.
D. Todd’s Ability to Provide Support
¶41 Todd complains that the district court “failed to properly
consider [his] needs and expenses.” He asserts that the court’s
decision left him with a $4,587 total shortfall, while Lori’s
“alimony award exceeds her needs.” He also asserts that the
court’s findings regarding his ability to provide support were
inadequate.
¶42 Paragraphs 22 and 23 of the district court’s findings of fact
address Todd’s ability to pay alimony. In particular, the court
found that after adjustments, Todd’s expenses were $8,041 per
month. It also found that
[Todd’s] stated net [income] is $7,654 which creates
a shortfall; however, he has discretion over a large
part of his income. [Todd] has accumulated
retirement assets consisting of bond funds, IRAs,
[a] 401(k), and annuities, which total $1.5 million in
principal. [Todd] testified that he takes a monthly
draw of 3% ($3,500) per month, and that the
amount of the draw is entirely at his discretion.
The Court notes that if his draw increased 1%–2%
he is still not likely to run out of his principal over
the remaining alimony term or his lifetime.
20170721-CA 21 2019 UT App 114Eberhard v. Eberhard
¶43 An alimony award “must be within the payor spouse’s
ability to pay.” McPherson v. McPherson, 2011 UT App 382, ¶ 15,
265 P.3d 839. Here, in finding that Todd could pay alimony, the
court acknowledged that Todd had a shortfall. In so doing, it did
not account for the $4,200 alimony payment that he was making
to Lori, and it suggested that Todd had enough money in his
retirement accounts to cover his shortfall. But the court did not
explain in enough detail how, given the shortfall, the alimony
award was within Todd’s ability to pay. The court also did not
provide specific calculations to show that Todd could draw
sufficient funds from his retirement accounts to cover the
shortfall while not unreasonably depleting the principal.
¶44 As with its findings about Lori’s needs, we conclude that
the court’s findings about Todd’s ability to pay do not “disclose
the steps” it took to reach its ultimate conclusion that the
alimony award was within Todd’s ability to pay. See Rayner v.
Rayner, 2013 UT App 269, ¶ 11, 316 P.3d 455 (cleaned up). We
therefore remand for the district court to enter more detailed
findings on this issue as well. To the extent the court on remand
modifies Lori’s needs and Todd’s ability to pay, the court should
also reconsider its alimony determination in light of any altered
figures. See Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294 P.3d
591; see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d
994 (explaining that “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 reanalysis
. . . . [to] ensure that the alimony award exceeds neither [the
recipient’s] demonstrated need nor [the payor’s] ability to pay”).
E. The Parties’ Line-Item Monthly Expenses
¶45 Lastly, Todd challenges the district court’s decisions
regarding several of the parties’ line-item expenses: (1) Lori’s
20170721-CA 22 2019 UT App 114Eberhard v. Eberhard
food and household expenses; (2) Lori’s extracurricular
activities, which included airfares to visit the parties’ adult
children; (3) Lori’s expenses on donations and gifts; (4) Todd’s
dental expenses; and (5) the parties’ real property maintenance
expenses.
¶46 First, Todd contends that the district court erred when it
allowed Lori to have $500 in food and household expenses,
when she had claimed only $300 for such expenses in 2014 and
when “there was no justification for the increase of $200 per
month.” The district court found that Lori’s “stated needs” on
her 2016 financial declaration were “very reasonable.” The court
thus accepted Lori’s figure of $500 for her monthly food and
household supplies and thereby found that $500 accurately
represented such expenses. Regardless of whether Lori stated a
lower figure for such needs in 2014, Todd has not shown that the
district court’s finding of her needs on this point lacked
sufficient evidentiary support or required more detailed
findings. See Fish v. Fish, 2016 UT App 125, ¶ 28, 379 P.3d 882(“Failure to rule in favor of one party neither renders the
evidence insufficient to support the findings nor the findings
inadequate to support the ruling.”).
¶47 Second, Todd challenges the court’s decision to allow Lori
$200 per month for extracurricular activities, which included air
flights to visit their adult children. When Todd examined Lori
about these expenses at trial, Lori testified that those expenses
were for her travel to visit the parties’ children and “often
include[d] the food at the destination” for herself and the
children when she was treating them for dinner in exchange for
their hospitality. The court accepted Lori’s declared expenses
and allocated her $200 per month for these expenses. It also gave
her $100 per month for entertainment. It bears noting that Todd
listed $1,000 for his monthly travel and entertainment costs,
which he attributed to “traveling all over the west.” The court
allowed him to claim these monthly expenses. Under these
20170721-CA 23 2019 UT App 114Eberhard v. Eberhard
circumstances and when the court also found that the marital
standard of living included regular vacations, we cannot say that
the district court abused its discretion in assessing Lori’s
monthly expenses related to extracurricular activities.
¶48 Third, Todd challenges Lori’s expenses for donations and
gifts. The district court found that Lori’s reasonable monthly
expenses included $100 for donations and $200 in gifts, accepting
Lori’s figures in her financial declaration. Likewise, the court
accepted Todd’s figures of $100 for donations and $200 in gifts.
In light of the fact that the court allocated the same amount for
each party to spend on donations and gifts, Todd has not shown
that the district court abused its discretion. Cf. Rule v. Rule, 2017
UT App 137, ¶ 26, 402 P.3d 153 (inferring that the parties’
current expenses were based on the marital standard of living
when “the majority of the expenses in [the husband’s current]
financial declaration are identical in amount to those identified
as marital expenses in [the wife’s current] financial declaration”);
Sauer v. Sauer, 2017 UT App 114, ¶ 10, 400 P.3d 1204 (seeing “no
impropriety in the trial court’s decision to impute housing needs
to [the wife] in the same amount as [the husband] had claimed
was reasonable for him”).
¶49 Fourth, Todd complains that the district court adjusted
his monthly dental expenses down from $900 to $50. Todd’s
financial declaration listed $900 per month in dental expenses,
noting that he spent $14,000 on such expenses in 2016. The court
relied on Todd’s testimony to find that these expenses were
“fully paid and not recurring.” 13 On that basis, the court adjusted
13. On appeal, Todd implies that “[i]t is very likely he will
continue to have ongoing Dental Expenses” given his age. Yet
when asked at trial whether he expected his dental expenses to
be ongoing, he testified, “No, I don’t think so.” He also testified
that his “dental [expenses] will probably go down.”
20170721-CA 24 2019 UT App 114Eberhard v. Eberhard
Todd’s dental expenses down to $50 per month. Though Todd
disagrees with this decision, he has not shown that the district
court exceeded the bounds of its discretion. 14
¶50 Fifth, Todd complains that the district court improperly
reduced his claimed real property maintenance expenses from
$1,000 to $100 per month. 15 Todd listed $1,000 as his monthly
real estate maintenance expenses on his financial declaration. In
the court’s findings on Todd’s expenses, it adjusted this expense
to $100 per month given Todd’s testimony about “numerous
completed and paid-for projects such as a new deck, new
windows, a new roof, [and] replacement of furnace and
appliances.” Yet when the court totaled Todd’s monthly
expenses, it did not make that downward adjustment, effectively
accepting Todd’s claimed real estate maintenance expenses at
$1,000. Despite the court’s stated intention to adjust Todd’s
expenses downward, the court did not make the adjustment, and
thus Todd has not shown how he was prejudiced by any alleged
14. In connection with his complaint about his dental expenses,
Todd also briefly claims that the court’s decision allocating $450
per month to Lori for health care expenses is unsupported by the
evidence. But Lori’s financial declaration provided evidentiary
support for this figure, and Todd has not explained why it is
insufficient to support the court’s finding. See Sauer v. Sauer, 2017
UT App 114, ¶ 12, 400 P.3d 1204 (concluding that the district
court did not clearly err in finding that a spouse had unmet
needs when her financial declaration supported that finding).
15. Todd also suggests that Lori’s competing expenses for real
property maintenance lack evidentiary support. But Lori’s
financial declaration listed $550 per month for real property
maintenance, and Lori testified about that figure at trial. Todd
has not demonstrated on appeal that this evidence was legally
insufficient to support the district court’s finding.
20170721-CA 25 2019 UT App 114Eberhard v. Eberhard
error regarding real estate maintenance expenses. See Utah R.
Civ. P. 61 (“The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not
affect the substantial rights of the parties.”).
II. Attorney Fees
¶51 We first address Todd’s challenge to the district court’s
award of attorney fees to Lori. We then consider Lori’s request
for her attorney fees incurred on appeal.
A. The District Court’s Award of Attorney Fees
¶52 Utah Code section 30-3-3(1) permits a court to award
attorney fees to a party in certain divorce proceedings “to enable
[a] party to prosecute or defend the action.” 16 Utah Code Ann.
§ 30-3-3(1) (LexisNexis 2013). “Such an award must be based on
evidence of the receiving spouse’s financial need, the payor
spouse’s ability to pay, and the reasonableness of the requested
fees.” Dahl v. Dahl, 2015 UT 79, ¶ 168 (cleaned up). The decision
to award attorney fees under Utah Code section 30-3-3 and the
16. Section 30-3-3(1) allows for an award of attorney fees, as
relevant here, in actions “to establish . . . alimony.” Utah Code
Ann. § 30-3-3(1) (LexisNexis 2013). This court has considered
actions to modify alimony to fall within this provision. See, e.g.,
Gore v. Grant, 2015 UT App 113, ¶¶ 25, 31, 349 P.3d 779 (“The
modification proceedings . . . involved a request to modify child
support, in other words, to establish a different support
obligation.”). However, the statute “does not provide for
attorney fees to defend an action to terminate alimony.” Scott v.
Scott, 2017 UT 66, ¶ 32, 423 P.3d 1275. Todd’s petition to modify
sought to terminate or reduce alimony, but Todd makes no
argument that section 30-3-3(1) could not support an award here.
Thus, we assume the provision applies.
20170721-CA 26 2019 UT App 114Eberhard v. Eberhard
amount thereof “rests in the sound discretion of the district
court.” Id.; Davis v. Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716.
We also require that such attorney fees awards be “based on
sufficient findings.” Davis, 2003 UT App 282, ¶ 14 (cleaned up).
¶53 The district court ordered Todd to pay half of Lori’s
attorney fees under Utah Code section 30-3-3(1). In support, the
court cited the parties’ financial declarations, their assets, Todd’s
ability to pay, and Lori’s needs. The court found that Lori paid
her attorney fees with her credit card, was living “on a month-to-
month basis,” had not accumulated additional savings since the
divorce, and had a budget that did “not allow for any
extraordinary expenses such as litigation fees.” In contrast, the
court found that Todd paid his attorney fees in full, had no debt,
had accumulated substantial savings since the divorce, had $1.5
million from which to draw for expenses and other needs, and
had the ability to pay some of Lori’s attorney fees.
¶54 The district court also determined that Lori’s reasonable
attorney fees and costs totaled $19,025. In so doing, the court
noted that it had directed Lori’s counsel to compile an updated
fee affidavit after trial and that the updated affidavit contained a
larger fee amount than that originally submitted. Todd objected
to the larger amount, accusing Lori’s counsel of bad faith and
lying. The court found that these accusations were both uncivil
and inaccurate. It compared the initial affidavit and the updated
affidavit, and it found that the only difference is that the initial
affidavit “contains only an estimate of the time necessary to
prepare for trial, while the [updated] affidavit contains the actual
time billed” for the three months around the time of trial. The
court found “no inflation of fees or dishonesty” on the part of
Lori’s counsel; it instead found that Lori’s counsel “did high-
quality work quite efficiently, with respect to the limited
resources of her client.” Having rejected Todd’s objection, the
court ordered Todd to pay $9,512.50 to Lori, representing half of
her total fees.
20170721-CA 27 2019 UT App 114Eberhard v. Eberhard
¶55 Todd makes three arguments challenging the attorney
fees award. First, he asserts that Lori’s counsel “should have
identified how much [Lori] has paid her and whether she has an
outstanding balance,” suggesting that Lori had “already paid”
her attorney and thus had no actual financial need for assistance
paying those fees. This argument misses the mark. The court
found that Lori used her credit card to pay her attorney fees and
that she still owed her credit card company. Thus, we are not
persuaded that the court erred in finding that Lori had a need
for attorney fees.
¶56 Second, Todd complains that $19,025 in fees was
unreasonable in light of Lori’s counsel’s initial representation
that her fees totaled around $10,892. The district court found that
this difference was explained by the fact that the initial figure
was “only an estimate” of Lori’s counsel’s time preparing for
trial, whereas the updated figure was “the actual time billed.”
The court also found that Lori’s counsel’s updated figure
represented her reasonable fees and, contrary to Todd’s
assertions, contained no inflated fees or dishonesty. Todd
disagrees with the court’s assessment, but he has not established
any abuse of discretion in its decision.
¶57 Third, Todd complains that ordering him to pay half of
Lori’s attorney fees is “inherently unfair” when he has a shortfall
while Lori has a surplus. The district court’s findings in
connection with its attorney fees decision rely on its alimony
findings regarding Lori’s needs and Todd’s ability to pay—
findings that we have concluded do not adequately show the
steps the court took to reach its decision. Supra ¶¶ 39–40, 43–44.
Thus, although we reject two of Todd’s arguments challenging
the award of attorney fees, we remand for the district court to
enter more detailed findings on Lori’s financial need and Todd’s
ability to pay and, if necessary, for the court to reconsider the
attorney fees award in light of any altered figures. See Taft v. Taft,
20170721-CA 28 2019 UT App 114Eberhard v. Eberhard
2016 UT App 135, ¶¶ 88–89, 379 P.3d 890; Andrus v. Andrus, 2007
UT App 291, ¶ 19, 169 P.3d 754.
B. Attorney Fees on Appeal
¶58 Lori requests an award of attorney fees incurred on
appeal. “Generally, when the trial court awards fees in a
domestic action to the party who then substantially prevails on
appeal, fees will also be awarded to that party on appeal.”
Wollsieffer v. Wollsieffer, 2019 UT App 99, ¶ 31 (cleaned up).
Given the mixed result on appeal, we decline to award Lori
attorney fees on appeal. See Andrus, 2007 UT App 291, ¶ 19.
CONCLUSION
¶59 We affirm the district court’s alimony decision in many
respects. But we conclude that the district court’s findings
regarding Lori’s needs and Todd’s ability to pay are not
adequately detailed to permit meaningful appellate review.
Accordingly, we remand to the district court with instructions to
enter more detailed findings on those issues. After making those
findings, the court may modify its award of attorney fees and
alimony if warranted.
20170721-CA 29 2019 UT App 114