Wellman v. Kawasaki ( 2023 )

2023 UT App 11THE UTAH COURT OF APPEALS
DAVID WELLMAN,
Appellee,
v.
KRISTIN KAWASAKI,
Appellant.
Opinion
No. 20210265-CA
Filed February 2, 2023
Fourth District Court, Provo Department
The Honorable Christine S. Johnson
No. 174402919
Mary Deiss Brown, Attorney for Appellant
Eric M. Swinyard and Keith L. Johnson,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
MORTENSEN concurred.
HARRIS, Judge:
¶1 Kristin Kawasaki appeals various aspects of a
comprehensive set of rulings issued following a two-day divorce
trial and post-trial proceedings; her chief complaint relates to the
trial court’s decision not to award her alimony. For the reasons
discussed below, we affirm the court’s orders.
BACKGROUND
¶2 David Wellman and Kristin Kawasaki married in 1999 and
have three children together, two of whom were minors at the
time of trial. For most of their marriage, Kawasaki did not work
Wellman v. Kawasaki
outside the home but instead cared for the children full-time. By
the time of trial, however, Kawasaki was working full-time as a
receptionist, earning $3,667 per month; Wellman, an engineer,
was earning $10,833 monthly.
¶3 In November 2017, Wellman filed for divorce. Some
months later, the trial court entered temporary orders, based
partially on stipulation, that made Kawasaki the primary physical
custodian of the minor children, and that required Wellman to
pay both $2,182 per month in child support as well as, in lieu of
alimony, the mortgage payment on the marital house (in the
amount of $2,836 per month). Additionally, the court awarded
“the temporary exclusive use and possession of” the parties’
marital house to Kawasaki.
¶4 In the three years between their separation and their
eventual divorce trial, the parties’ finances and daily lives
remained enmeshed due to Wellman’s changing employment and
living situation. Despite the fact that Kawasaki had been awarded
exclusive use of the marital house in the temporary orders,
Wellman lived in the basement of the house off and on in the years
leading up to trial. Wellman paid the mortgage in many of the
months, but missed those payments in others, and had stopped
making those payments altogether by the time of trial. And
despite being ordered to make child support payments, Wellman
never made a single such payment to Kawasaki prior to trial,
opting instead to pay many of her bills directly or to buy groceries
for the household while he was living in the marital house.
¶5 Eventually, the case proceeded to a bench trial, which was
held—virtually, through a videoconference platform—over two
days in late November and early December 2020. During the trial,
the court heard testimony from Wellman and Kawasaki as well as
several other witnesses. At the trial’s outset, before testimony
began, Wellman’s counsel alerted the court that Kawasaki had
failed to timely produce any financial documents (e.g., bank or
20210265-CA 2 2023 UT App 11Wellman v. Kawasaki
credit card statements, copies of bills) to support her claim for
alimony, despite the fact that the court had ordered both parties
to turn over to the other side a year’s worth of bank statements
prior to trial. In addition, while Kawasaki had submitted a
financial declaration in 2017, at the outset of the litigation, for use
during the temporary orders hearing, she had never updated that
declaration. Wellman’s counsel asserted that, under applicable
law, Kawasaki’s failure to provide documentation to support her
alimony claim “operates as an effective bar to [Kawasaki’s]
request for alimony.” Kawasaki’s counsel attempted to remedy
the situation by offering to have Kawasaki read a printout of her
most current (yet undisclosed) bank statement into the record, but
the court refused to allow that, explaining that it would not be
“appropriate” for Kawasaki to use evidence at trial that had not
been timely disclosed. But the court did not view Kawasaki’s
failure to produce an updated financial declaration or supporting
financial documents as a complete bar to her alimony claim;
indeed, the court stated that the parties “can address alimony
with documents that are already in the record,” and later allowed
both parties to offer testimony regarding certain aspects of
Kawasaki’s alimony claim.
¶6 During her trial testimony, Kawasaki provided few
concrete financial details; in particular, she made no attempt to tie
her testimony to any previously filed financial declaration, and
she did not submit any such declaration for the court’s
consideration at trial. The only specific dollar amounts Kawasaki
testified about were the amounts Wellman was ordered to pay in
connection with the temporary orders and the wage she earned
when she later obtained employment. She testified that, at the
time of trial, her net income each month was $2,800 but that, due
to expenses, “most months [she goes] into the negative” and has
to rely on her “overdraft.” However, she offered no concrete
expense numbers to substantiate this assertion. She offered her
belief that an apartment in her area suitable for her and the
20210265-CA 3 2023 UT App 11Wellman v. Kawasaki
children would cost “about $2,000,” but did not know what the
other expenses associated with such an apartment would be.
¶7 At one point, Kawasaki’s counsel even acknowledged that
she was “having trouble establishing [her] client’s needs . . .
because of disclosure problems,” but asserted that “there are ways
of establishing [Kawasaki’s] needs by establishing [Wellman’s]
needs.” To this end, counsel attempted to draw on figures
Wellman had put together before trial and to press him on how
much is “enough for a single person to live with three children.”
But counsel did not question Wellman about the line-item
expenses on his financial declarations, and did not submit any of
those declarations for the court’s consideration. Wellman did
admit, however, in response to a general question about how
much it would “cost to live with three kids,” that “$1,000 to $1,500
[monthly] for daily activities and food” was not “unreasonable.”
¶8 After considering all of the evidence presented, and after
taking into account the closing arguments from the attorneys, the
court took the matter under advisement, and later issued a written
ruling. In that ruling, the court awarded Kawasaki sole physical
custody of the minor children, allowing Wellman parent-time
pursuant to Utah Code section 30-3-35. The court ordered
Wellman to pay Kawasaki $1,578 per month in child support,
calculated by using the sole custody worksheet and assessing
Wellman’s monthly gross income at $10,833 and Kawasaki’s at
$3,667. The court also ordered Wellman to pay Kawasaki $76,370
in child support arrears, in light of the fact that Wellman had not
made any direct child support payments pursuant to the
temporary order. The court awarded title of the marital house to
Wellman, but ordered that the equity in the house be divided
equally within one year, either through a sale or a refinance. With
regard to all other marital debts, including debt from a loan taken
out during the marriage on a Thunderbird vehicle the parties had
purchased during the marriage, the court ordered that the parties
“be equally responsible for” them.
20210265-CA 4 2023 UT App 11Wellman v. Kawasaki
¶9 With regard to alimony, however, the court declined
Kawasaki’s request in its entirety. The court noted that the party
requesting alimony bears the burden to establish entitlement to it,
including the burden of establishing that party’s financial need.
The court found that Kawasaki “did not present any bank
statements whatsoever, nor did she submit a financial declaration
or any documentary evidence regarding her income, expenses, or
debts.” And the court found that Kawasaki’s testimony about her
financial need “was inconsistent and missing critical information”
and was not enough, in the absence of any documentary evidence,
to “persuade the Court that alimony should continue.”
¶10 After the ruling, Kawasaki filed a post-trial motion, chiefly
to ask the court to order either (a) that the marital house be sold
right away rather than within one year, or (b) that Kawasaki be
allowed possession of it until the sale or refinance. Among other
requests, Kawasaki also asked the court to amend its order so that
she would not have to share in paying off the debt relating to the
Thunderbird, asserting that Wellman had gifted the car to her and
then later destroyed it. But Kawasaki did not ask the court to
amend its alimony ruling. Following a hearing on the motion, the
court reiterated that Kawasaki was liable for her share of the
Thunderbird debt because “the debt was attributable to the
parties’ IRS debt,” which was a joint debt, and the court declined
Kawasaki’s request to materially amend its order regarding the
marital house.
ISSUE AND STANDARD OF REVIEW
¶11 Kawasaki now appeals, and asks us to review the trial
court’s decision not to award her any alimony. 1 “We review a
1. In her brief, Kawasaki also challenges the trial court’s failure “to
compensate [her] for Wellman’s post-separation destruction of
(continued…)
20210265-CA 5 2023 UT App 11Wellman v. Kawasaki
court’s alimony determination for an abuse of discretion,” Fox v.
Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (quotation simplified),
and “as long as the court exercises its discretion within the bounds
and under the standards our supreme court has set and so long as
the trial court has supported its decision with adequate findings
and conclusions,” we “will not disturb its ruling on alimony,”
Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (quotation
simplified).
ANALYSIS
¶12 “Under Utah law, the primary purposes of alimony are: (1)
to get the parties as close as possible to the same standard of living
that existed during the marriage; (2) to equalize the standards of
living of each party; and (3) to prevent the recipient spouse from
becoming a public charge.” Miner, 2021 UT App 77, ¶ 14
(quotation simplified). “The core function of alimony is therefore
her separate property, the Thunderbird.” We agree with
Wellman, however, that this precise issue was not properly
presented to the trial court and is therefore unpreserved. See State
v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to
raise and argue an issue in the trial court, it has failed to preserve
the issue, and an appellate court will not typically reach that
issue.”). At trial, the Thunderbird was discussed only as a
negative asset, due to the loan the parties had taken out on the
vehicle to pay marital debts. The only question the parties put
before the court, as concerned the Thunderbird, was which of
them (or both) should bear the responsibility for paying off the
debts associated with the vehicle. Kawasaki did not make an
argument that the Thunderbird had any positive equity, let alone
an argument that any such value should be awarded to her as her
separate property. Consequently, Kawasaki’s current claim to
that effect, here on appeal, is not preserved for our review, and
we do not discuss it further.
20210265-CA 6 2023 UT App 11Wellman v. Kawasaki
economic,” and “regardless of the payor spouse’s ability to pay
more, the recipient spouse’s demonstrated need must constitute
the maximum permissible alimony award.” Roberts v. Roberts,
2014 UT App 211, ¶ 14, 335 P.3d 378 (quotation simplified).
¶13 In evaluating a party’s alimony claim, “courts must
consider the statutory alimony factors,” which include “the
financial condition and needs of the recipient spouse, the
recipient’s earning capacity, and the ability of the payor spouse to
provide support.” Fox, 2022 UT App 88, ¶ 20 (quotation
simplified). These three factors are often called the “Jones factors”
because they date back to Jones v. Jones, 700 P.2d 1072 (Utah 1985);
they have since been codified in Utah Code section 30-3-
5(10)(a)(i)–(iii), and they remain the first three factors of a “multi-
factor inquiry” that governs a court’s alimony determination. See
Miner, 2021 UT App 77, ¶ 16.
¶14 “A party seeking alimony bears the burden of
demonstrating to the court that the Jones factors support an award
of alimony.” Dahl v. Dahl, 2015 UT 79, ¶ 95, 459 P.3d 276. The most
common way for a party to satisfy this burden is for the party to
“provide the court with a credible financial declaration and
[supporting] financial documentation to demonstrate that the
Jones factors support an award of alimony.” Id. ¶ 96. And in most
cases, that is what the parties do; indeed, our current rules of civil
procedure require parties in domestic cases to turn over to the
other side, at the outset of the case, “a fully completed Financial
Declaration, using the court-approved form,” along with
“attachments,” including recent bank statements and tax returns
as well as “copies of statements verifying the amounts listed on
the Financial Declaration.” See Utah R. Civ. P. 26.1(c). The court-
approved form includes a table where parties are expected to set
forth, in line-item fashion, their monthly expenses. See Financial
Declaration, Utah State Courts, 6-7, https://legacy.utcourts.gov/ho
wto/family/financial_declaration/ docs/1352FA_Financial_Declar
ation.pdf [https://perma.cc/K77G-Y99V]. And these disclosures,
20210265-CA 7 2023 UT App 11Wellman v. Kawasaki
like other required disclosures, must be timely supplemented in
the event things materially change. See Utah R. Civ. P. 26(d)(5). At
trial, parties seeking alimony often use the line-item expense
categories listed in their financial declarations as a template for
the “needs” portion of their alimony request, offering testimony
about the items in the declaration and seeking admission into
evidence of the applicable documents (bank statements, credit
card statements, tax returns, etc.) that support the various expense
categories. See, e.g., Miner, 2021 UT App 77, ¶¶ 20–63 (analyzing
separate challenges to eleven of the forty-five expense line items
in a trial court’s alimony award).
¶15 In this case, however, Kawasaki did not follow this course
of action. She did submit a financial declaration in 2017, at the
outset of the case, and it was used in connection with the
temporary orders hearing. But she did not ever supplement that
declaration in advance of the trial held some three years later; she
did not testify about that declaration at trial; she failed to
produce—even after the court ordered her to do so—any financial
documentation supporting her alleged expenses; and she failed to
gain admission of either her declaration or any specific financial
documentation into evidence at trial. 2
¶16 Litigants who bring alimony claims but fail to support
them with the usual documentation put trial courts in a very
difficult spot. On the one hand, trial courts are trained to be
sensitive to the potential unfairness of a litigant—in particular one
who has spent years, perhaps even decades, out of the workforce
while raising children—being left without sufficient support,
especially where that litigant’s spouse is able to live comfortably.
Indeed, alimony is supposed to allow the recipient spouse to
2. As noted, the trial court excluded some of Kawasaki’s offered
evidence on the ground that the documents had not been timely
disclosed to Wellman. On appeal, Kawasaki does not challenge
the court’s ruling excluding her undisclosed evidence.
20210265-CA 8 2023 UT App 11Wellman v. Kawasaki
enjoy, as much as possible, the marital standard of living, and is
designed “to prevent the recipient spouse from becoming a public
charge.” Id. ¶ 14 (quotation simplified). In this context, as is often
the case in family law, trial courts have wide discretion to fashion
remedies that fit the situation faced by the family at issue. See
Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 41, 402 P.3d 219(“Trial 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.” (quotation simplified)).
¶17 In particular, trial courts are vested with discretion to
“impute figures” for a recipient spouse’s needs analysis, even
where complete documentation is lacking, as long as there is
sufficient evidence to support such imputation. See Dahl, 2015 UT
79, ¶ 116 (stating that courts “may impute figures” (emphasis
added)). In cases where an alimony claimant fails to provide
sufficient documentation, courts may find adequate support for
the imputation of particular expenses in, for instance, the
opposing party’s documentation, see id. (stating that “the district
court could have . . . imputed a figure to determine [the recipient
spouse’s] financial need based . . . on . . . [the opposing party’s]
records of the parties’ predivorce expenses”), or in updated
financial declarations supported not by timely disclosed financial
documents but instead by the sworn testimony of witnesses, see
Munoz-Madrid v. Carlos-Moran, 2018 UT App 95, ¶ 10, 427 P.3d 420(upholding a trial court’s imputation of some of a recipient
spouse’s expense items, despite the spouse’s “fail[ure] to provide
supporting documentation with her financial declaration,”
because the spouse had provided an updated financial
declaration and another witness had offered specific testimony at
trial about the spouse’s rent and utilities expenses that was
“consistent with [the] financial declaration”).
¶18 But on the other hand, trial courts’ discretion in this arena
is not unlimited, and courts that go too far in trying to help
20210265-CA 9 2023 UT App 11Wellman v. Kawasaki
litigants who haven’t sufficiently supported their alimony claims
risk abusing their discretion. Courts that make alimony awards
“must support [those] determinations with adequate findings,”
see Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153, including
specific findings regarding a recipient spouse’s reasonable
monthly needs. Where trial courts attempt to make alimony
awards in the absence of specific findings, supported by evidence
in the record, regarding a recipient spouse’s actual needs, those
courts have often been reversed. See, e.g., Eberhard v. Eberhard, 2019
UT App 114, ¶¶ 36–40, 449 P.3d 202 (reversing as inadequately
supported a trial court’s alimony award that, on its face, exceeded
the recipient spouse’s monthly needs but was apparently
designed to vaguely bring her more into line with “the marital
standard of living,” and stating that “[w]ithout the district court
more precisely spelling out the amount that [the recipient spouse]
realistically requires . . . to enjoy the marital standard of living, we
are unable to discern whether the alimony award, in fact, exceeds
her needs”); Bakanowski v. Bakanowski, 2003 UT App 357, ¶¶ 11–
13, 80 P.3d 153 (reversing where “the trial court engaged in an
effort to simply equalize income . . . rather than going through the
traditional needs analysis,” and concluding that “the trial court
abused its discretion by failing to enter specific findings on [the
recipient spouse’s] financial needs and condition”).
¶19 In this case, the trial court determined that the evidence
Kawasaki presented at trial was insufficient to allow the court to
make the findings necessary for an alimony award. In its ruling,
the court noted that Kawasaki “did not submit a financial
declaration” at trial, nor did she present any “bank statements” or
other “documentary evidence regarding her . . . expenses” The
court—presumably in an effort to locate admitted evidence upon
which it could rest an imputation of some of Kawasaki’s
expenses—then noted that Wellman had not submitted a financial
declaration at trial either, nor had he provided bank statements or
any “detailed testimony regarding either of the [parties’] monthly
financial obligations.” Finally, the court discussed Kawasaki’s
20210265-CA 10 2023 UT App 11Wellman v. Kawasaki
own testimony at trial, but concluded that her “testimony
regarding . . . her monthly expenses . . . was inconsistent and
missing critical information,” and therefore “did not persuade the
[c]ourt that alimony should continue.”
¶20 Under the circumstances presented here, we discern no
abuse of the trial court’s discretion in reaching this conclusion. As
already noted, Kawasaki’s attempt to place into evidence
undisclosed bank statements was denied, and after that Kawasaki
made no real effort to provide the court, at trial, with any concrete
evidence of her monthly expenses. She did not attempt to submit
her 2017 financial declaration for the court’s consideration at trial,
and she did not attempt to provide any testimony about the line-
item expenses on that declaration. And although she had in her
possession, at trial, a copy of Wellman’s financial declaration, she
asked Wellman only a few general questions about it, and did not
attempt to ask him any specific questions about the expense line
items. The only categories of expenses that she even generally
discussed, through questioning of witnesses, were housing—as to
which she testified that she thought a suitable apartment would
cost “about $2,000” per month—and a vague category her counsel
referred to as how much it would “cost to live with three kids”—
as to which Wellman offered his view that “$1,000 to $1,500 [per
month] for daily activities and food” would not be
“unreasonable.” Against the backdrop of this evidence, we
consider it far from an abuse of the trial court’s discretion for the
court to conclude that Kawasaki had failed to carry her burden of
demonstrating a need for alimony.
¶21 Kawasaki resists this conclusion on two grounds. First, she
asserts that the trial court misinterpreted applicable law by
refusing to even consider her alimony claim after the court ruled
that the untimely disclosed bank statements were inadmissible.
Kawasaki correctly argues—as we have explained above—that a
party’s failure to provide documentation supporting an alimony
claim is not necessarily fatal, so long as other evidence in the
20210265-CA 11 2023 UT App 11Wellman v. Kawasaki
record can support imputation of the necessary expenses, and so
long as a trial court is willing to exercise its discretion to make
such imputations. And we acknowledge that certain statements
by the trial court, during the pretrial discussion about the bank
statements, may have left the impression that the court was
refusing to consider Kawasaki’s alimony claim altogether. For
instance, at one point Wellman’s attorney stated that his
understanding of Dahl was “that a failure to supply bank
statements prevents the [c]ourt from actually evaluating”
Kawasaki’s alimony claim, and the court responded by stating
that counsel’s argument was “consistent with [its] understanding
of Dahl.” But later, the court noted that “if there are other
documents” that could be used to “substantiate [Kawasaki’s]
finances, then you can use those,” and told Kawasaki that she
could “address alimony with documents that are already in the
record” and that “if there are records of some kind that would
support a claim for alimony, then [Kawasaki] can go forward”
with that claim. And in its written ruling, the court clearly did not
perceive Kawasaki’s alimony claim as entirely barred by her
failure to provide documentation; instead, the court evaluated
that claim against the backdrop of the evidence that had been
presented at trial. Kawasaki is simply incorrect when she asserts
that the trial court refused to consider her alimony claim.
¶22 Second, Kawasaki asserts that the trial court could have,
and should have, made findings regarding her monthly needs
from the evidence available in the record. We disagree that the
evidence could have supported imputation of the full list of
Kawasaki’s expenses; with regard to most of them, there was
simply no evidence admitted whatsoever. For instance, there was
no specific discussion at trial of utility expenses, automobile or
transportation expenses, entertainment expenses, or clothing
expenses. Had the trial court attempted to make findings
regarding such unsupported expenses, it likely would have
exceeded its discretion.
20210265-CA 12 2023 UT App 11Wellman v. Kawasaki
¶23 But a trial court, on this record, could perhaps have
exercised its discretion to impute to Kawasaki a housing expense
of $2,000 and a food expense of, say, $1,000. After all, housing and
food are universal needs, and those figures were discussed at trial
by both Kawasaki and Wellman and appeared to have been more
or less undisputed. But while the court perhaps could have
exercised its discretion to impute these two discrete expenses, we
are not prepared to say that it was an abuse of discretion not to do
so; after all, the evidence supporting these figures was vague at
best and unsupported by any documentation. And in any event,
even if the court had made these two imputations, that would have
resulted in a determination that Kawasaki’s demonstrated
monthly expenses were $3,000, a conclusion that would not have
resulted in an alimony award given that Kawasaki’s net income
was $2,800 per month and that Wellman had been ordered to pay
Kawasaki $1,578 per month in child support. See Roberts v. Roberts,
2014 UT App 211, ¶ 14, 335 P.3d 378 (stating that, “regardless of
the payor spouse’s ability to pay more, the recipient spouse’s
demonstrated need must constitute the maximum permissible
alimony award” (quotation simplified)). Under these
circumstances, even if the court had reached to assist Kawasaki
by making these two specific imputations, that effort would not
have resulted in any alimony award to Kawasaki.
¶24 In some cases, the evidence is solid enough, even without
proper documentation from the alimony claimant, for a court to
be able to exercise its discretion to impute at least some of the
claimant’s expenses, especially basic universal ones like housing
and food. See Munoz-Madrid, 2018 UT App 95, ¶ 10; see also Dahl,
2015 UT 79, ¶ 116 (stating that “courts may impute figures”
(emphasis added)). Indeed, in keeping with the purposes of
alimony, courts should attempt to do so where the evidence and
equity permit. But in other cases—including this one—the
evidence is simply not strong enough to support imputation of
enough expenses to justify an alimony award. See Dahl, 2015 UT
79, ¶¶ 108–09 (stating that, where the claimant “provided no
20210265-CA 13 2023 UT App 11Wellman v. Kawasaki
financial declaration, no supporting financial documentation, and
no expert testimony,” her “unsubstantiated testimony did not
satisfy her burden of showing her financial need”). We perceive
no abuse of discretion in the trial court’s conclusion that, on this
record, Kawasaki had not borne her burden of demonstrating
entitlement to alimony.
CONCLUSION
¶25 As the party seeking an alimony award, Kawasaki bore the
burden of showing her financial need for such an award. The trial
court determined that Kawasaki had failed to meet that burden,
and that conclusion was not an abuse of the court’s discretion.
¶26 Affirmed.
20210265-CA 14 2023 UT App 11