Gardner v. Gardner

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 28
IN THE
SUPREME COURT OF THE STATE OF UTAH
CHRISTINA L. GARDNER,
Appellant,
v.
NELSON D. GARDNER,
Appellee.
No. 20170598
Filed June 27, 2019
On Direct Appeal
Third District, Salt Lake
The Honorable Matthew Bates
No. 164902102
Attorneys:
Robert W. Hughes, Julie J. Nelson, Erin B. Hull,
Salt Lake City, for appellant
Jill L. Coil, Luke A. Shaw, Kyle O. Maynard, Sandy,
David W. Read, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in
which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,
JUSTICE PEARCE, and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶ 1 After a twenty-two year marriage, Nelson Gardner and
Christina Gardner divorced. Before the divorce trial, they settled
issues related to child custody and the distribution of their marital
property. But they could not agree on the proper terms of
Mr. Gardner’s alimony obligation to Ms. Gardner. After a three-day
bench trial, the district court determined that Ms. Gardner was
entitled to alimony, but, because of her extramarital sexual affairs,
the court reduced her alimony award in amount and duration.
GARDNER v. GARDNER
Opinion of the Court
¶ 2 Specifically, the court calculated the amount of the alimony
award based on Ms. Gardner’s expected reasonable monthly
expenses, rather than on the monthly expenses she had incurred
while married to Mr. Gardner. The court also set the alimony award
for a period of ten years rather than the maximum statutory length of
twenty-two years. The court stated that it was making these
reductions because it did not believe it would be fair, where
Ms. Gardner’s conduct had substantially contributed to the demise of
the marital relationship, to obligate Mr. Gardner to maintain
Ms. Gardner at the standard of living she enjoyed during the
marriage.
¶ 3 Ms. Gardner now appeals the terms of the alimony award,
arguing the court erred in the following respects: (1) in determining
that her infidelities substantially contributed to the end of the
marriage; (2) in setting the specific terms of the alimony award; (3) in
imputing income to her at an “arbitrary amount”; (4) in failing to
consider the tax burden of the alimony award; and (5) in denying her
request for attorney fees. Because none of the alleged errors
constituted an abuse of the district court’s discretion or were plainly
incorrect, we affirm the district court’s alimony determination on all
counts.
Background
¶ 4 Nelson Gardner and Christina Gardner were married for
twenty-two years before divorcing in 2017. During the course of the
marriage, Mr. Gardner worked full-time, and Ms. Gardner stayed
home with their five children.1 Although the couple had agreed to
this arrangement, after their youngest child turned five, Mr. Gardner
frequently encouraged Ms. Gardner to work outside the home or to
obtain additional education.
¶ 5 At the time of the divorce, Mr. Gardner worked as a “global
director of business development,” making roughly $200,000 per
year. Ms. Gardner, on the other hand, did not have consistent
employment but “occasionally worked part-time, earning $11 or $12
per hour.” Ms. Gardner does not have a college degree or any
professional license, but she has earned money teaching swimming,
_____________________________________________________________
1 Although Mr. Gardner had only four children with
Ms. Gardner, Mr. Gardner helped raise Ms. Gardner’s son from a
previous marriage and treated him “as his own.” At the time the
divorce decree was entered, the couple had two minor children:
M.G.G., age 17 and S.L.G., age 15.
2
Cite as: 2019 UT 28
Opinion of the Court
piano, sewing, and art classes. Also, she has earned sizeable
commissions for her artwork, although not on a consistent basis.
¶ 6 The couple’s relationship had a lot of “ups and downs”
throughout the marriage. Mr. Gardner testified that the key factor in
the couple’s marital discord was Ms. Gardner’s “multiple episodes of
infidelity.” In 2007 and 2009, Ms. Gardner had extramarital sexual
affairs. Although the parties appeared to have “reconciled and
moved on” following these affairs, the court found that Mr. Gardner
had suspected Ms. Gardner of having another affair in 2013. And,
according to Mr. Gardner, the “final nail” was in 2016 when he
discovered that Ms. Gardner had developed an “inappropriate
relationship” with another man. He made this discovery after
Ms. Gardner was injured in an accident while allegedly spending
time with that man.2 Mr. Gardner filed for divorce shortly thereafter.
¶ 7 Although both parties also testified to the existence of other
marital problems, including “mutual verbal abuse” and one act of
physical abuse by Ms. Gardner, as well as to arguments over finances
and marital responsibilities, the district court found that it was
Ms. Gardner’s “sexual relationships with persons other than
[Mr. Gardner that] substantially caused the breakup of the marriage
relationship.” The district court determined that this constituted
“fault” under Utah Code section 30-3-5, and so could be considered
as part of the court’s alimony determination.
¶ 8 The court factored fault into its alimony determination in
two ways. First, it held that, due to Ms. Gardner’s fault, it need not
pursue the typical goal of equalizing the standards of living between
the parties.3 Second, it determined that Ms. Gardner was not entitled
to alimony “for the maximum allowed duration.” It reasoned that
these reductions were warranted because it would be “unfair for one
of the parties to cause the breakup of the marriage relationship but to
continue to enjoy the temporal and material benefits of having the
(ex-)spouse support an affluent life-style enjoyed by both during the
marriage.”
_____________________________________________________________
2 Although this final affair had not yet progressed to a sexual
relationship, Mr. Gardner believed that it soon would.
3 See Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988)
(explaining that a general goal in an alimony determination is to
“equalize the parties’ respective standards of living” to the extent
possible).
3
GARDNER v. GARDNER
Opinion of the Court
¶ 9 The court departed from the goal of equalization by
calculating Ms. Gardner’s alimony award based on “reasonable
monthly expenses” rather than on the expected monthly expenses
she incurred while living at the lifestyle she enjoyed before the
divorce. This resulted in a $1,513 reduction in Ms. Gardner’s
estimated “need”—from $6,950 to $5,437 per month.
¶ 10 The court arrived at this reduced number, in part, by
reducing her expected housing expenses “from $2,455 [per] month to
$1,600 [per] month.” It concluded that although $1,600 per month
might not be enough to buy a home in her former neighborhood, it
should be enough to rent “a three bedroom apartment . . . in that
area” or to purchase “a modest home, probably on the west side of
the freeway.” The court also reduced other anticipated living
expenses, such as Ms. Gardner’s anticipated car payment and gas
and utility expenses, to reflect more “reasonable” monthly expenses.
¶ 11 With Ms. Gardner’s adjusted monthly expenses in mind,
the court set out to calculate an alimony payment amount that would
meet her needs. As the first step in this calculation, the court imputed
an income of $1,300 per month to Ms. Gardner.4 Next, the court
factored in the $2,137 per month in child support payments that
Ms. Gardner would be receiving from Mr. Gardner until the two
minor children turned eighteen or graduated from high school,
whichever occurred later. Finally, the court awarded Ms. Gardner
$2,000 per month in alimony payments. Adding the imputed income,
child support, and alimony together, the court calculated that
Ms. Gardner would have an income of $5,437 ($4,137 of which would
come from Mr. Gardner) per month to match her expected
reasonable needs of $5,437.
_____________________________________________________________
4 The court arrived at its imputed income amount by “imput[ing]
income to [Ms. Gardner] at a minimum wage level as if it [were]
full-time.” Although the court found that Ms. Gardner’s “physical
impairments from the accident diminished her ability to work
full-time,” it did not believe there was “enough evidence . . . to find
she is incapable of working.” Despite determining that she was
incapable of working full-time, the court calculated her imputed
income on a full-time basis because it concluded that due to “her
position in life and the fact that she does have some skills as far as
she has worked before,” she probably could find a job earning more
than minimum wage. We note that Ms. Gardner’s trial counsel
conceded that “imputing minimum wage [would be difficult], but
. . . appropriate under the law and under the statute.”
4
Cite as: 2019 UT 28
Opinion of the Court
¶ 12 The court also determined that the alimony payment
amount would increase to $2,368 per month once their second
youngest son turned eighteen or graduated from high school. And it
would increase again to $3,128 per month once their youngest son
turned eighteen or graduated from high school. Thereafter, the
alimony amount would decrease by $200 per year until the term for
alimony expired or terminated for another reason. The court
explained that this “step-down” arrangement was designed “to
encourage [Ms. Gardner] to start working, get[] some education, or,
if she is indeed disabled,5 to seek income from a government or
charitable disability program.”
¶ 13 Although the court acknowledged that under the adjusted
monthly totals, Ms. Gardner would not be able to enjoy “the same
affluent life-style that she had during the course of the marriage,” it
explained that such a result was fair in light of its fault determination
because to do otherwise would have the effect of “penaliz[ing]
Mr. Gardner for something that really did not appear . . . was his
fault.”
¶ 14 The court also factored fault into its alimony calculation by
deciding that Ms. Gardner was “not entitled to receive alimony for
the maximum allowed duration under the statute, which is the
length of the marriage.” So the court ordered Mr. Gardner to pay
alimony for a ten-year period, rather than the maximum allowed
period of twenty-two years.6
¶ 15 Ms. Gardner now appeals the terms and the length of the
alimony award. The appeal was initially filed in the court of appeals,
but that court certified it to us. We have jurisdiction pursuant to Utah
Code section 78A-3-102(3)(b).
Standard of Review
¶ 16 Ms. Gardner raises a number of issues on appeal. First, she
challenges the district court’s fault determination, as well as the
terms of her alimony award. We review a district court’s alimony
_____________________________________________________________
5 The court had previously ruled that Ms. Gardner had failed to
produce evidence that her health problems left her “incapable of
working.”
6 The divorce decree states that “[a]limony should automatically
terminate in the event [Ms. Gardner] remarries, cohabitates, either
party dies, or the term of the alimony expires on August 1, 2026;
whichever occurs first.”
5
GARDNER v. GARDNER
Opinion of the Court
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 we have set and has supported
its decision with adequate findings and conclusions.’”7 Second, she
argues that the district court plainly erred when it failed to account
for the tax burden imposed by the imputed income and by
Ms. Gardner’s alimony award. This issue was not preserved, so we
address it under the plain error doctrine.8 Finally, Ms. Gardner
argues that the court abused its discretion when it failed to award
her attorney fees under Utah Code section 30-3-3(1). We review a
district court’s decision to award attorney fees pursuant to this
statute for an abuse of discretion.9
Analysis
¶ 17 Ms. Gardner challenges several aspects of the district
court’s alimony determination. First, she argues the court abused its
discretion when it determined that “statutorily-defined fault
substantially contributed to the breakup of the marriage.” Second,
she argues the court misapplied the law in determining the terms of
the alimony award without achieving “the first two ‘primary aims of
alimony.’” Third, she argues the court abused its discretion in
imputing income to her. Fourth, she argues the court plainly erred by
failing to consider her tax burden when determining the alimony
amount. And finally, she argues the court abused its discretion when
it declined to award her attorney fees under the divorce statute.
¶ 18 In divorce actions, a district court “is permitted
considerable discretion in adjusting the financial and property
interests of the parties, and its actions are entitled to a presumption
of validity.”10 Accordingly, we will reverse only if (1) “there was a
misunderstanding or misapplication of the law resulting in
substantial and prejudicial error”;11 (2) the factual findings upon
_____________________________________________________________
7 Dahl v. Dahl, 2015 UT 79, ¶ 84, ---P.3d--- (alteration in original)
(quoting Connell v. Connell, 2010 UT App 139, ¶ 5, 233 P.3d 836).
8 State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443.
9 Dahl, 2015 UT 79, ¶ 168.
10 Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation
omitted) (internal quotation marks omitted). For this reason, “we
will not disturb a court’s distribution of marital property ‘unless it is
clearly unjust or a clear abuse of discretion.’” Id. (citation omitted).
11 Id. (citation omitted) (internal quotation marks omitted).
6
Cite as: 2019 UT 28
Opinion of the Court
which the award was based are “clearly erroneous”;12 or (3) the party
challenging the award shows that “such a serious inequity has
resulted as to manifest a clear abuse of discretion.”13 Because “we can
properly find abuse only if no reasonable person would take the
view adopted by the trial court,” appellants have a “heavy burden”
to show that an alleged error falls into any of these three categories.14
After reviewing the district court’s alimony determination under this
standard, we conclude that none of the errors Ms. Gardner alleges
constitute reversible error. Accordingly, we affirm.
I. We Affirm the District Court’s Determination That
Ms. Gardner’s Affairs Substantially Contributed to the Divorce
¶ 19 First, we consider whether the district court abused its
discretion by determining, under Utah Code section 30-3-5(8)(c), that
Ms. Gardner was at fault in causing the divorce. We hold that it did
not.
¶ 20 The court found that Ms. Gardner had engaged in wrongful
conduct during the marriage that substantially contributed to the
breakup of the marriage relationship. But in doing so, the court did
not explain how it defined the term “substantially contributed”—a
term that is not defined in statute or our caselaw. So, as part of our
determination, we must clarify what constitutes conduct that
“substantially contributes” to a divorce. Under this clarified
standard, we conclude that the district court did not err in making its
fault determination.
_____________________________________________________________
12 Dahl v. Dahl, 2015 UT 79, ¶ 121, ---P.3d---; see also id. (“[W]e give
due regard to the district court’s superior position from which to
judge the credibility of witnesses.”).
Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation
13
marks omitted).
14 Id. (citation omitted) (internal quotation marks omitted); see also
Dahl, 2015 UT 79, ¶ 119 (“Thus, we will uphold the decision of the
district court on appeal ‘unless a clear and prejudicial abuse of
discretion is demonstrated.’” (citation omitted)); Davis v. Davis, 2003
UT App 282, ¶ 7, 76 P.3d 716 (quoting Breinholt v. Breinholt, 905 P.2d
877, 879 (Utah Ct. App. 1995)) (explaining that when reviewing the
trial court’s findings of fact, “we will reverse only if the findings are
clearly erroneous”).
7
GARDNER v. GARDNER
Opinion of the Court
A. Under Utah Code section 30-3-5(8)(c), “substantially contributed”
means conduct that was a significant cause of the divorce
¶ 21 Utah Code section 30-3-5(8)(b) authorizes courts to consider
“the fault of the parties in determining whether to award alimony
and the terms of the alimony.” And Section 30-3-5(8)(c) states that a
spouse’s participation in an extramarital affair constitutes fault if it
“substantially contributed” to the breakup of the marriage. No Utah
appellate court has defined what constitutes conduct that
“substantially contributed” to a divorce. Accordingly, we consider
the meaning of the term as a matter of first impression.
¶ 22 Under the plain meaning of the term “substantially
contributed,” the conduct at issue must be an important or
significant factor in the divorce, but it does not have to be the first
cause, or the only cause.15 Merriam-Webster’s Collegiate Dictionary
defines “substantial” variously as “not imaginary or illusory,”
“considerable in quantity,” and “being largely but not wholly that
which is specified.”16 Although none of these definitions are a perfect
fit with the use of “substantial” in section 30-3-5(8), each definition
suggests that “substantial” means a considerable or important part of
something, but not necessarily the entire part. Under these
definitions, a substantial cause is one that is sufficient to lead to the
breakup of the marriage, but is not necessarily the only identifiable
cause. This is the same way in which “substantial” is used in other
areas of law.
¶ 23 For example, in Utah we employ a “substantial factor” test
when determining causation in negligence actions.17 Black’s Law
Dictionary defines the “substantial-cause test” as the “principle that
causation exists when the defendant’s conduct is an important or
significant contributor to the plaintiff’s injuries.”18 So according to
Black’s Law Dictionary, a substantial cause can be defined as an
“important or significant contributor” to a particular harm.
_____________________________________________________________
15 Cf. McCorvey v. Utah State Dep’t of Transp., 868 P.2d 41, 45 (Utah
1993) (“[T]here can be more than one proximate cause or, more
specifically, substantial causative factor, of an injury.”).
16 Substantial, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (10th
ed. 1998).
17 See, e.g., Devine v. Cook, 279 P.2d 1073, 1080 (Utah 1955)
(applying the substantial factor test in a negligence case).
18 Substantial-cause test, BLACK’S LAW DICTIONARY (11th ed. 2019).
8
Cite as: 2019 UT 28
Opinion of the Court
¶ 24 And the Restatement (Second) of Torts defines
“substantial” similarly:
The word “substantial” is used to denote the fact that
the defendant’s conduct has such an effect in producing
the harm as to lead reasonable men to regard it as a
cause, using that word in the popular sense, in which
there always lurks the idea of responsibility, rather than
in the so-called “philosophic sense,” which includes
every one of the great number of events without which
any happening would not have occurred. Each of these
events is a cause in the so-called “philosophic sense,”
yet the effect of many of them is so insignificant that no
ordinary mind would think of them as causes.19
¶ 25 So, like the Black’s Law Dictionary definition, the
Restatement describes a substantial cause as a cause that a reasonable
person would consider an important or significant factor in the
bringing about of a specific event. This definition applies equally
well in the divorce context.
¶ 26 As with harm in a negligence case, a “great number of
events” may have contributed to a divorce. In fact, we have
previously recognized “that it is seldom, perhaps never, that there is
any wholly guilty or wholly innocent party to a divorce action.”20 So
in almost all divorce cases, it could be argued that each spouse
contributed in some way to the breakup of the marriage.21 But some
_____________________________________________________________
19 RESTATEMENT (SECOND) OF TORTS § 431 cmt. a (1965) (emphasis
added).
20 Wilson v. Wilson, 296 P.2d 977, 979 (Utah 1956).
21 This is especially true when the alleged “fault” is infidelity.
Infidelity and marital discord often walk hand in hand. As we have
previously noted, “when people are well adjusted and happy in
marriage, one of them does not just ou[t] of a clear blue sky fall in
love with someone else.” Id. at 979. So when a district court is
presented with evidence of infidelity and asked to determine fault, it
will almost always be presented with a chicken-and-egg type
dilemma: did marital discord lead to infidelity or did infidelity lead
to marital discord? But section 30-3-5(8) does not require district
courts to resolve that dilemma before considering fault in an
alimony determination. Instead, it requires only that the court
determine whether the infidelity “significantly contributed” to the
breakup of the marriage.
9
GARDNER v. GARDNER
Opinion of the Court
causes are clearly more substantial, or significant, than others. So
even though it may be impossible to state with certainty a sole, or
even the first, cause leading to the breakup of the marriage, it will
certainly be possible in many cases for a court to determine the
significant or important causes of the divorce.
¶ 27 Accordingly, we conclude that “substantially contributed”
to the breakup of the marriage is conduct that was a significant or an
important cause of the divorce. Under this definition, conduct need
not be the sole, or even the most important, cause for it to
substantially contribute to a divorce. So when an important or
significant cause falls into a category of conduct specifically
identified in section 30-3-5(8), courts are authorized to consider it in
an alimony determination, even if the at-fault party can point to
other potential causes of the divorce.
B. The district court did not abuse its discretion in determining
that Ms. Gardner’s extramarital affairs substantially
contributed to the divorce
¶ 28 In this case, the district court held that Ms. Gardner’s
“infidelity substantially contributed to the breakup of the marriage
relationship.” As Ms. Gardner herself acknowledges in her brief,
fault in this case could be established only if the court found that
Ms. Gardner (1) “engag[ed] in sexual relations with a person other
than the party’s spouse” and by so doing she (2) “substantially
contributed to the breakup of the marriage.”22 Ms. Gardner claims
that “no conduct meets both [of these] elements.” But the district
court found otherwise. Because the court did not misapply the law,
and its findings are not clearly erroneous, it did not abuse its
discretion in concluding that Ms. Gardner’s conduct substantially
contributed to the breakup of the marriage.
¶ 29 In the divorce decree, the district court found that
Ms. Gardner “had affairs involving sexual relations with persons
other than her spouse in 2007 and 2009.” The court also found that
Mr. Gardner “suspected another affair in 2013 and [Ms. Gardner]
admitted to an inappropriate relationship in 2016 at the time of the
filing of petition for divorce[,] [which] had not yet become physical.”
Finally, the court found that Mr. Gardner “filed for divorce because
[Ms. Gardner] had previously been unfaithful and had commenced
another inappropriate relationship that [Mr. Gardner] believed
would become a sexual relationship.” Based on these factual
_____________________________________________________________
22 UTAH CODE § 30-3-5(8)(c).
10
Cite as: 2019 UT 28
Opinion of the Court
findings, the court determined that “Ms. Gardner’s sexual
relationships with persons other than [Mr. Gardner] substantially
caused the breakup of the marriage relationship.” The court did not
misapply the law in making this determination.
¶ 30 Ms. Gardner argues the court erred by characterizing her
relationship with another man in 2016 as a sexual relationship. But
she does not point to any place where the district court suggested
that the 2016 relationship constituted a sexual relationship. Rather,
the court determined that Ms. Gardner had engaged in extramarital
affairs in 2007 and 2009, and then found that “Ms. Gardner’s sexual
relationships with persons other than [Mr. Gardner] caused the
breakup of the marriage relationship.” Accordingly, Ms. Gardner
fails to show that the court misapplied the law by incorrectly
characterizing a non-physical relationship as a sexual relationship.
¶ 31 Ms. Gardner also fails to show that the court’s fault finding
was clearly erroneous. Importantly, she does not deny that she
engaged in extramarital affairs in 2007 and 2009, so the first element
of fault is met. Instead, she argues that the district court clearly erred
when it found those affairs to have substantially caused the breakup
of the marriage. We disagree.
¶ 32 In reviewing a district court’s factual findings, we must
keep in mind that the district court “has a comparative advantage in
its firsthand access to factual evidence, and because there is no
particular benefit in establishing settled appellate precedent on issues
of fact, there is a potential downside and no significant upside to a
fresh reexamination of the facts on appeal.”23 So, under our clearly
erroneous standard, we will disturb a court’s factual findings only
where the court’s conclusions do not logically follow from, or are not
supported by, the evidence.24
¶ 33 Ms. Gardner argues the court clearly erred for two reasons.
First, she asserts the court clearly erred in concluding that other
causes “did not substantially contribute to the breakup of the
marriage relationship,” because “‘irreconcilable differences’
provided not only ‘[an]other reasonable explanation,’ but the most
‘reasonable explanation’ for the divorce.” Second, she asserts the
court clearly erred because the extramarital affairs played a
“relatively minor role in the divorce.” But neither argument
convinces us that the court’s findings were clearly erroneous.
_____________________________________________________________
23 Myers v. Myers, 2011 UT 65, ¶ 32, 266 P.3d 806.
24 Gardner v. Gardner, 748 P.2d 1076, 1078 (Utah 1988).
11
GARDNER v. GARDNER
Opinion of the Court
¶ 34 As evidence of irreconcilable differences, Ms. Gardner
points to “multiple disputes unrelated to the infidelity,” including
disputes over their level of religious involvement, their division of
labor in the home, and finances, as well as to episodes of mutual
verbal abuse, and one episode in which she hit Mr. Gardner. But, as
we have already discussed, conduct need not be the first, or only,
cause of the breakup of the marriage for it to substantially contribute
to the divorce. Instead, it need only be an important or significant
cause. So the evidence of other sources of contention does not
foreclose the possibility that Ms. Gardner’s multiple episodes of
infidelity substantially contributed to the divorce. And when the
other evidence presented at trial is considered, we conclude that the
district court’s fault determination is not clearly erroneous.
¶ 35 In fact, the record evidence suggests that Ms. Gardner’s
extramarital affairs were a significant, if not the primary, impetus for
the demise of the marriage. At trial, Mr. Gardner was asked what
fueled the breakup of the parties’ marriage, and he replied as
follows:
It goes back a long ways. There’s been lots of ups and
downs in the marriage, lots of ups and downs. There’s
been infidelity that took place back in 2005, ‘6, ‘7, I don’t
know the actual time periods. I know that it was real to
me in 2007. There was additional infidelity that took
place in February of 2009 and on and on. The date of her
accident, I believe she was with someone who was
probably an inappropriate friend as well.
¶ 36 Mr. Gardner was then asked to confirm whether “these
infidelities . . . led to the demise of the marriage,” to which he replied
that it “was clearly a very big impetus for where [they] went.” And it
was only after explaining how Ms. Gardner’s infidelities affected
their marriage that he explained that there were other sources of
“discontent” between them, such as disputes regarding their religion,
income, and the division of responsibility within the marriage. This
testimony suggests that the extramarital affairs were a significant
cause of the divorce, even though there were other areas of
contention in their marriage. Accordingly, the evidence supports the
district court’s conclusion that Ms. Gardner’s extramarital affairs
substantially contributed to the breakup of the marriage. And
Ms. Gardner does not point to any other evidence that would
contradict this.
¶ 37 The closest Ms. Gardner comes to contradicting
Mr. Gardner’s testimony is when she discusses his attempts to stay in
12
Cite as: 2019 UT 28
Opinion of the Court
the marriage from the time he learned of the infidelities until 2016.
She argues that the evidence suggests that her extramarital affairs
played a “relatively minor role in the divorce” because Mr. Gardner
stayed in the marriage for as long as he did.
¶ 38 In support, she points to the fact that Mr. Gardner had
initially told their children that they were getting a divorce in 2007
after the first episode of infidelity, but that he “reconsidered”
because Ms. Gardner “agreed to go through the repentance process
at their church.” She also points to the fact that, despite her affair, “he
tried to help her, ‘absolutely,’ [by] seeking help from a psychiatrist
and staging an intervention with the help of friends [and] by sending
her from Arizona to Park City for a few days ‘to collect herself.’” But
rather than contradict Mr. Gardner’s testimony that the extramarital
affairs harmed the marriage, this additional testimony further
corroborates it. The fact that he considered divorce after the first
affair in 2007 and sought to find her “help” indicates that
Mr. Gardner viewed his wife’s infidelity as having significantly
damaged their marriage. And this conclusion is not undermined by
the fact that he agreed to remain in the marriage once she agreed to
go through a formal repentance process through their church.
¶ 39 In fact, other comments he made regarding his decision to
remain in the marriage confirm how damaging her extramarital
affairs were. He testified that his decision was a “tough” one in light
of her “multiple episodes of infidelity,” and that even though he
“really tr[ied] to hang on” he “sort of knew that it was probably the
end.” So Mr. Gardner’s decision to not get divorced immediately
upon learning of her extramarital affairs does not suggest that the
affairs were an insubstantial factor in the marriage’s eventual
breakup.
¶ 40 Ms. Gardner also points to Mr. Gardner’s testimony that he
“was very committed to [the] relationship forever except for some of
the egregious things that took place” to suggest that her affairs were
not significant. But the most reasonable interpretation of this
comment is that Mr. Gardner was very committed until Ms. Gardner
made the “egregious” decision to engage in an extramarital affair.25
_____________________________________________________________
25 Mr. Gardner’s very next statement after saying that he
was committed except for the egregious things that took place
clarifies that the egregious things he was referring to were
Ms. Gardner’s “multiple episodes of infidelity.”
13
GARDNER v. GARDNER
Opinion of the Court
So, once again, the evidence Ms. Gardner cites to attack the court’s
findings actually supports them.
¶ 41 Finally, Ms. Gardner points to the events surrounding an
accident she suffered in 2016 to suggest that this incident, and not the
previous affairs, was the true cause of the divorce. She claims that the
parties “had a pretty good blowup,” and that this was the true end of
their marriage. But the events surrounding the accident are
significant only when viewed in the context of Ms. Gardner’s
extramarital sexual affairs in 2007 and 2009.
¶ 42 The evidence on record reasonably supports the conclusion
that Ms. Gardner’s affairs in 2007 and 2009 triggered the “blowup” in
2016. After the affairs, Mr. Gardner agreed to remain in the marriage
for a time.26 But in 2016, Mr. Gardner discovered that Ms. Gardner
had entered into an “inappropriate relationship” with the man with
whom she had been on the day of her accident. Although
Mr. Gardner admitted that this relationship had not yet become
physical, he testified that Ms. Gardner had said that the man
“wanted to take it further.”
¶ 43 Mr. Gardner testified that this discovery was “the final nail”
and “the end.” And it was around this time that the parties had their
“blowup”—the event that Ms. Gardner suggests was the true cause
of the divorce. Several months later Mr. Gardner formally filed for
divorce. So even though Ms. Gardner’s affairs in 2007 and 2009 did
not immediately end the divorce, the evidence supports the district
court’s conclusion that they were significant factors in the eventual
“blowup” that precipitated the ultimate end of the marriage.
¶ 44 In sum, the phrase “substantially contributed” in
section 30-3-5(8) should be interpreted as referring to conduct that
was a significant or important cause of the breakup of the marriage.
Under this interpretation, the conduct need not be the only
significant cause, or the first significant cause; instead, it need only be
significant enough that a reasonable person would conclude that it
was an important factor in the divorce. Because evidence supports
the conclusion that Ms. Gardner’s extramarital sexual relationships in
2007 and 2009 were significant factors in the ultimate demise of the
couple’s marriage, we cannot say that the district court clearly erred
_____________________________________________________________
26 As Mr. Gardner was discussing the “tough” decision he made
to “hang on” to their marriage, he explained that he did it to provide
“stability” for his children.
14
Cite as: 2019 UT 28
Opinion of the Court
when it found that the affairs substantially contributed to the
breakup of the marriage.
II. We Affirm the District Court’s Determination of the
Terms of the Alimony Award
¶ 45 Next we must consider whether the district court
committed reversible error in establishing the terms of the alimony
award. As we have explained, we will disturb a district court’s
determination in a divorce proceeding only if (1) “there was a
misunderstanding or misapplication of the law resulting in
substantial and prejudicial error”;27 (2) the factual findings upon
which the award was based are “clearly erroneous”;28 or (3) the party
challenging the award shows that “such a serious inequity has
resulted as to manifest a clear abuse of discretion.”29
¶ 46 In this case, Ms. Gardner does not challenge the factual
findings underlying the terms of the district court’s alimony award.
Instead, she argues that the court misapplied the law in establishing
the terms of the alimony award because it did not seek to achieve
“the first two ‘primary aims of alimony’”: (1) to get the parties as
close as possible to the same standard of living that existed during
the marriage and (2) to equalize the standards of living of each party.
Additionally, she argues that the alimony award, when the totality of
its terms are considered, constitutes an abuse of discretion because it
resulted in “harsh punishment.” Because the plain language of the
alimony statute authorized the district court to depart from the
default aims of alimony, and because the resulting alimony award
did not create such a serious inequity as to manifest a clear abuse of
discretion, we decline to disturb the district court’s alimony
determination.
_____________________________________________________________
27 Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation
omitted) (internal quotation marks omitted).
28Dahl v. Dahl, 2015 UT 79, ¶ 121, ---P.3d---; see also id. (“[W]e give
due regard to the district court’s superior position from which to
judge the credibility of witnesses.”).
Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation
29
marks omitted).
15
GARDNER v. GARDNER
Opinion of the Court
A. The district court was not required to base Ms. Gardner’s alimony
award on the standard of living she enjoyed while married, nor to
equalize her and Mr. Gardner’s standards of living
¶ 47 The district court was not required to base Ms. Gardner’s
alimony award on the standard of living she enjoyed while married,
nor to equalize her and Mr. Gardner’s standards of living. Although
courts should begin each alimony determination by considering the
parties’ respective economic circumstances with the aim of
equalizing their post-divorce standards of living as nearly as possible
to the standard of living they enjoyed while married, both our
caselaw and the language of the alimony statute demonstrate that
courts may depart from these default rules where necessary to
achieve a fair and equitable result between the parties.
¶ 48 Our caselaw makes clear that the “overarching aim of a
property division, and of the decree of which it and the alimony
award are subsidiary parts, is to achieve a fair, just, and equitable
result between the parties.”30 To that end, we have stated that courts
should seek to divide property and award alimony in a way that
avoids “perpetuation of the difficulties that brought failure to the
marriage.”31 In other words, a property division and alimony award
should “minimize animosities” and help the parties move on with
their separate lives after divorce.32
¶ 49 To achieve these general aims, we have adopted a number
of default rules to guide district courts. For example, we have held
that alimony awards should be made with the purpose of
“provid[ing] support for the [receiving spouse] as nearly as possible
at the standard of living [he or] she enjoyed during marriage, and to
prevent the [spouse] from becoming a public charge.”33 And we have
stressed that “to the extent possible” the court should “equalize the
parties’ respective standards of living.”34 These rules tend to further
_____________________________________________________________
30 Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation
marks omitted).
31 Wilson v. Wilson, 296 P.2d 977, 979 (Utah 1956).
32 Id. (explaining that a fair determination “let[s] the dead past
bury its dead,” so to speak).
33 Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (citation omitted)
(internal quotation marks omitted).
34 Gardner v. Gardner, 748 P.2d 1076, 1081 (Utah 1988). We note
that equalization is a proper aim in an alimony determination only
(Continued)
16
Cite as: 2019 UT 28
Opinion of the Court
the aim of “avoid[ing] perpetuation of the difficulties that brought
failure to the marriage”35 because they put the parties in the best
possible position to “reconstruct their [separate] lives on a happy and
useful basis.”36
¶ 50 But in some situations the application of the default rules
will not lead to the most equitable result.37 When this is the case,
courts have the discretion to deviate from them. For example, in Riley
v. Riley, the Utah Court of Appeals upheld an alimony award to the
wife that was “well above” her demonstrated monthly need.38 In that
case, a husband challenged the alimony award amount because it
exceeded the amount needed to sustain the wife at the appropriate
standard of living. But the court rejected this argument in light of the
husband’s fault in causing the divorce.39 It explained that “even
though such an award would be too high if only economic factors
were considered,” in light of the husband’s fault, fairness to the wife
could be achieved only by considering the husband’s fault as a factor
in setting the amount of the alimony award.40 Thus the decision in
Riley helps underscore the principle that where one party’s fault
harmed the other party, the court may consider that fault as it
attempts to balance the equities in order to achieve the ultimate aim
where “the parties’ combined resources do not stretch far enough” to
support “two households rather than one” at the standard of living
the parties enjoyed during the marriage. Rule v. Rule, 2017 UT App
137, ¶ 20, 402 P.3d 153. In other words, where there is more than
enough money to support both spouses at the marital standard of
living, the surplus need not be divided equally. But where there is a
shortfall, the court should attempt to equalize the burden caused by
that shortfall between the parties in a fair and equitable manner. Id.
¶ 21.
35 Wilson, 296 P.2d at 979.
36 Id.
37 See id. at 979 (explaining that “no firm rule can be uniformly
applied in all divorce cases, and that each must be determined upon
the basis of the immediate fact situation”).
38 2006 UT App 214, ¶ 19, 138 P.3d 84.
39 Id. ¶ 23.
40 Id. ¶¶ 23–24.
17
GARDNER v. GARDNER
Opinion of the Court
in an alimony determination—to achieve “a fair, just, and equitable
result between the parties.”41
¶ 51 Similarly, in Wilson v. Wilson, we considered a district
court’s decision to award alimony for a period of eight and one-third
years after a fifteen-year marriage.42 In that case, the district court
concluded that even though the wife’s lack of work experience
caused the court to be “apprehensive” for her “welfare,” it
determined that alimony for the full length of the marriage was not
appropriate due to “the attitudes of the parties.”43 Because of their
attitudes, the court believed that “requiring [the husband] to carry
the burden of permanent alimony would lead to ‘almost [unbearable]
bitterness.’”44 In other words, the district court determined that a
lengthy alimony award would not further the aim of putting the
parties in the best possible position to “reconstruct their [separate]
lives on a happy and useful basis.”45
¶ 52 But the husband in Wilson appealed the district court’s
alimony award. According to the husband, the shortened duration of
the alimony award was not short enough. We agreed. Although we
recognized that the district court has considerable latitude in setting
the terms of alimony, we held that the award did “not conform to the
design the trial judge was avowedly trying to fashion of imposing an
obligation upon [the husband] to pay a modest amount of alimony
for a definite period of time and with a termination date in sight.”46
For that reason, we reduced the duration of the award by half.47 So
the decision in Wilson, like the decision in Riley, stands for the
principle that where strict application of the normal alimony
guidelines would not further the court’s aim of achieving a fair, just,
and equitable result between the parties it is appropriate to deviate
therefrom.
_____________________________________________________________
41 Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation
marks omitted).
42 Wilson, 296 P.2d at 980–81.
43 Id. at 980.
44 Id.
45 Id. at 979.
46 Id. at 981.
47 Id.
18
Cite as: 2019 UT 28
Opinion of the Court
¶ 53 These principles were codified in Utah Code section
30-3-5(8). Section 30-3-5(8)(a) requires district courts to consider the
financial situations of both spouses as part of its alimony
determination.48 Additionally, section 30-3-5(8)(e) urges district
courts to “look to the standard of living, existing at the time of
separation, in determining alimony in accordance with
Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court
may . . . attempt to equalize the parties’ respective standards of
living.” Together these provisions codify the default rules that an
alimony award should be crafted to “provide support for the
[receiving spouse] as nearly as possible at the standard of living [he
or] she enjoyed during marriage,”49 and, “to the extent possible,” to
“equalize the parties’ respective standards of living.”50
¶ 54 As we have explained, these default rules tend to further
the court’s aim of achieving “a fair, just, and equitable result between
the parties”51 because they typically put the parties in the best
possible position to “reconstruct their [separate] lives on a happy and
useful basis.”52 So the economic factors, and the general aim of
placing the parties in the same position they enjoyed during the
marriage, stand as an important starting point in any alimony
determination.
¶ 55 But section 30-3-5(8) also provides courts the flexibility and
discretion to depart from these default rules in certain situations
where fairness demands. For example, in addition to the economic
factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also
authorizes courts to consider “the fault of the parties in determining
_____________________________________________________________
48 UTAH CODE § 30-3-5(8)(a) (requiring courts to consider the
recipient spouse’s financial conditions, needs, and earning capacity;
the payor spouse’s ability to provide support; the length of the
marriage; whether the recipient spouse has custody of minor
children; and other economic considerations).
49Jones, 700 P.2d at 1075 (citation omitted) (internal quotation
marks omitted).
50 Gardner, 748 P.2d at 1081.
51Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation
marks omitted).
52 Wilson, 296 P.2d at 979; see also id. (explaining that an alimony
award should help the parties “avoid perpetuation of the difficulties
that brought failure to the marriage”).
19
GARDNER v. GARDNER
Opinion of the Court
whether to award alimony and the terms of the alimony.”53 So the
statute expressly provides district courts with the discretion to
consider fault in determining whether to award alimony, as well as
in determining the terms—the amount and length—of the alimony
award.
¶ 56 Section 30–3–5 also provides guidance for how a court may
adjust the amount and length of an alimony award in the event the
court determines that one spouse’s fault necessitates a departure
from the default economic alimony factors. For example, although
section 30-3-5(8)(e) urges district courts as “a general rule,” to “look
to the standard of living, existing at the time of separation,” it also
instructs courts to “consider all relevant facts and equitable
principles,” and grants courts “discretion” to “base alimony on the
standard of living that existed at the time of trial.” When
section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault
provision, it is clear that where a court determines that one spouse’s
fault would make it inequitable to maintain both parties at the
standard of living enjoyed during the marriage, the court has the
discretion to lower the award to an amount sufficient to sustain the
at-fault spouse at a reasonable standard of living post-marriage,
rather than the standard of living the couple enjoyed during the
marriage.
¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart
from default alimony awards where fault contributed to the break-up
of the marriage. It instructs courts to “attempt to equalize the parties’
respective standards of living.” But it also notes that courts should
do so only “under appropriate circumstances.” So once again, when
this provision is read together with section 30-3-5(8)(b)’s fault
provision, it is clear that courts need not attempt to equalize the
parties’ respective standards of living where one spouse’s fault
would make equalization inappropriate.54
_____________________________________________________________
53 In Riley, the court of appeals relied upon this provision in
setting an alimony award at an amount that would have been “too
high if only economic factors were considered.” 2006 UT App 214,
¶ 23.
54 Additionally, we note that it would not be appropriate to
equalize the parties’ respective standards of living where doing so
would result in an alimony award to the receiving spouse that
exceeds the estimated expenses of maintaining that spouse at the
marital standard of living.
20
Cite as: 2019 UT 28
Opinion of the Court
¶ 58 Therefore, under the plain language of section 30-3-5(8),
courts have discretion to depart from the default economic rules
where one party’s fault makes it appropriate to do so. Because the
district court determined that Ms. Gardner’s conduct qualified as
fault under the statute, the court was authorized to depart from the
default alimony rules by reducing Ms. Gardner’s alimony award by
some amount.
B. The district court’s reduction of Ms. Gardner’s alimony award
did not constitute an abuse of discretion
¶ 59 Although we conclude that the district court’s fault
determination authorized it to consider fault as part of its alimony
determination, we must also determine whether the manner in which
the court factored Ms. Gardner’s fault into the alimony award
constituted an abuse of discretion in this case. Ms. Gardner argues
the court erred in disproportionately reducing her alimony award,
because in her view, the “fault [in this case] was at most a minor
piece of the failure of the marriage.” We ultimately disagree with
Ms. Gardner on this point, but her argument highlights a need to
clarify the manner in which district courts may rely on fault in
establishing the terms of an alimony award.
¶ 60 As we have explained, conduct listed in section 30-3-5(8)(c)
may constitute fault even though it is not necessarily the only, or
even the most important, factor in the breakup of the marriage. But
courts should also recognize that not all conduct qualifying as fault
under section 30-3-5(8)(c) should be given equal weight in alimony
determinations. So where the fault of the parties is at issue, courts
must make a threshold determination of whether the alleged conduct
qualifies as fault under section 30-3-5(8)(c). And where the court
determines conduct does qualify, it must then determine the role the
fault should play in the alimony calculation.
¶ 61 In so doing, courts should keep in mind that the ultimate
purpose of any property division or alimony award is to “achieve a
fair, just, and equitable result between the parties.”55 For this reason,
courts should consider fault only in an attempt to balance the
equities between the parties. In other words, where one party’s fault
has harmed the other party, the court may attempt to re-balance the
_____________________________________________________________
55 Dahl, 2015 UT 79, ¶ 25 (citation omitted) (internal quotation
marks omitted).
21
GARDNER v. GARDNER
Opinion of the Court
equities by adjusting the alimony award in favor of the party who
was harmed by that fault.56
¶ 62 Because courts should consider fault only to prevent or
rectify an inequity to the not-at-fault spouse, courts must necessarily
make detailed factual findings regarding the harmful effect of the
fault. This is because the gravity of the harm caused by a party’s fault
will differ from case to case. The gravity of the harm may depend
upon the nature of the conduct, the effect of the at-fault party’s
conduct on the marriage and the other party, and on other equitable
factors.
¶ 63 So we hold that before a court considers fault as part of its
determination, it must make a threshold determination, under
section 30-3-5(8)(c), that the conduct qualifies as fault. It should then
make detailed findings regarding the gravity of the harm caused by
the fault. In making these findings, the court should focus on the
_____________________________________________________________
56 We note that some Utah courts have struggled to articulate an
appropriate role of fault in alimony determinations in light of our
case law suggesting that the purpose of alimony is not to punish. See
Mark v. Mark, 2009 UT App 374, ¶ 17, 223 P.3d 476 (“[I]f a trial court
uses its broad statutory discretion to consider fault in fashioning an
alimony award and then, taking that fault into consideration, adjusts
the alimony award upward or downward, it simply cannot be said
that fault was not used to punish or reward either spouse by altering
the award as a consequence of fault.”). But other Utah courts have
concluded that fault may be considered without constituting
punishment if it is used only to rectify the inequity caused by the
fault. See Christiansen v. Christiansen, 2003 UT App 348, 2003 WL
22361312 at *2 (“Fault may correctly be considered by the trial court
without penalizing the party found to be at fault.”); see also Wilson,
296 P.2d at 980 (explaining that equitable factors often cause courts
to impose permanent alimony on “erring” spouses); Riley, 2006 UT
App 214, ¶ 24 (affirming the district court’s consideration of a
husband’s fault as an important “factor in fairness to [Wife]”
(alteration in original)). As this latter line of cases suggests, fault may
be considered as long as it is used as a basis to prevent or rectify an
inequity to the not-at-fault spouse. So in reviewing an alimony
determination involving fault, Utah appellate courts should focus on
whether a fault-based modification of an alimony award helped
“achieve a fair, just, and equitable result between the parties” rather
than on whether it was punitive in nature. Dahl, 2015 UT 79, ¶ 25
(citation omitted) (internal quotation marks omitted).
22
Cite as: 2019 UT 28
Opinion of the Court
harm the at-fault conduct caused to the marriage57 and the other
party, along with other equitable factors. The court should then
articulate the extent to which these findings justify a departure from
the default rules of alimony.58
¶ 64 We note, however, that where a district court has made
sufficient factual findings related to the gravity of fault, it has broad
discretion in determining the manner in which fault factors into a
“fair, just, and equitable” alimony determination in a given case. This
is because the ultimate determination of how fault should be factored
in will be based on broad equitable principles. And broad equitable
principles do not lend themselves to the precise legal standards
typically considered as part of an appellate review.
¶ 65 Accordingly, once we have determined that a court
correctly applied section 30-3-5(8)(c) in determining whether conduct
qualifies as fault, we will not disturb the court’s alimony
determination unless the factual findings underlying the
determination are insufficient or clearly erroneous, or the resulting
alimony award causes such serious inequity as to manifest a clear
abuse of discretion.59
¶ 66 In this case, the district court properly applied
section 30-3-5(8)(c) in determining that Ms. Gardner’s conduct
constituted fault. As part of this determination, the court also made
_____________________________________________________________
57 We emphasize that in considering the harm or effect at-fault
conduct had on the marriage, a court should determine the degree to
which fault caused the disruption of the marriage. This is an
important consideration because not all conduct meeting the
threshold standard for fault under the statute will equally contribute
to the demise of the marital relationship.
58Without such findings, it will be difficult for an appellate court
to determine whether the district court’s ultimate alimony
determination was within its discretion.
59 Once again we note that we will disturb a district court’s
alimony determination only if (1) “there was a misunderstanding or
misapplication of the law resulting in substantial and prejudicial
error,” Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation
marks omitted); (2) the factual findings upon which the award was
based are “clearly erroneous,” Dahl, 2015 UT 79, ¶ 121; or (3) the
party challenging the award shows that “such a serious inequity has
resulted as to manifest a clear abuse of discretion.” Goggin, 2013 UT
16, ¶ 44 (citation omitted) (internal quotation marks omitted).
23
GARDNER v. GARDNER
Opinion of the Court
numerous findings regarding the effect Ms. Gardner’s fault had on
the marriage, on Mr. Gardner, and on the unfairness of awarding
alimony without making a fault-based reduction. After reviewing
these findings, we cannot say that they are insufficient or clearly
erroneous.
¶ 67 The district court found that Ms. Gardner’s extramarital
affairs seriously harmed the marriage and Mr. Gardner. For example,
the court found that the extramarital affairs were the only
“reasonable explanation as to why th[e] marriage fell apart,” and that
they “seem[ed] to have driven Mr. Gardner to file for this divorce.”
These statements indicate that the district court viewed
Ms. Gardner’s conduct as having had a profound, decisive effect on
the parties’ marriage.
¶ 68 The court also made findings regarding the effect of
Ms. Gardner’s conduct on the fairness of an alimony determination
based on the default rules. The court explained it would be “unfair”
to obligate Mr. Gardner to provide “a large support payment” that
would allow Ms. Gardner “to continue living in a[n] affluent
life-style” when it had been her conduct that caused “the break up of
the marriage partnership.” Later on, the court reiterated this
reasoning, stating that it was “not going to penalize Mr. Gardner for
something that really did not appear . . . [to be] his fault.” Based on
these equitable principles, the court determined it would be fair to
reduce Ms. Gardner’s expected standard of living from “affluent” to
“very comfortable.” Thus the court made findings regarding the
gravity of harm caused by Ms. Gardner’s fault, and it explained how
that fault would affect its alimony determination.
¶ 69 Importantly, Ms. Gardner does not challenge the factual
findings underlying the court’s alimony reductions. For example, the
court found that even though it was reducing her housing expenses
from $2,445 per month to $1,600 per month, she would nevertheless
be able to afford a “modest” home in a less expensive area or a “three
bedroom apartment” in the affluent neighborhood in which she was
currently living. Ms. Gardner does not argue that the amount
provided for housing expenses will be insufficient for the purchase of
such a home or the rental of a three bedroom apartment. She likewise
does not challenge the court’s other fault-based reductions.
¶ 70 Instead, Ms. Gardner seems to challenge only the court’s
characterization of the gravity of her fault. In other words, she argues
that the court clearly erred when it determined that the nature of her
conduct justified it in not providing her with sufficient alimony to
24
Cite as: 2019 UT 28
Opinion of the Court
continue living in a home that is roughly as expensive as her marital
home.
¶ 71 But we are not convinced that the court’s characterization of
her fault is clearly erroneous. Although it is conceivable that the
court could have made more detailed factual findings regarding the
relative gravity of the fault at issue in this case, there is sufficient
support in the record to conclude that her extramarital affairs were
severely damaging. Mr. Gardner testified that he considered her
affairs to be “egregious,” and that they were a key factor in the
divorce.60 Accordingly, the court’s findings regarding the gravity of
harm caused by Ms. Gardner’s conduct—that it was the primary
impetus of the divorce—are not clearly erroneous.
¶ 72 And when we consider the effect of the specific alimony
reductions, we also cannot say that they resulted in such serious
inequity as to manifest a clear abuse of discretion. Ms. Gardner
argues that the court abused its discretion in four ways: (1) by
reducing her need by “nearly one-third,” (2) by “shorten[ing] the
alimony award from the statutory length of the marriage (here, 22
years) to only ten,” (3) by providing for a gradual decrease in the
alimony amount over the final years of the award, and (4) by
imputing to her an income of $1,300. But because Ms. Gardner has
not shown that these reductions resulted in such serious inequity as
to manifest a clear abuse of discretion, we must uphold the district
court’s alimony determination.
1. The district court’s reduction of Ms. Gardner’s expected monthly
expenses did not result in such serious inequity as to manifest a
clear abuse of discretion
¶ 73 The district court did not abuse its discretion in reducing
Ms. Gardner’s expected monthly expenses. The court reduced
Ms. Gardner’s expected monthly expenses “to reflect reasonable and
necessary expenses for a person in her circumstances” because it did
not believe it was fair to obligate Mr. Gardner to maintain
Ms. Gardner at the standard of living she enjoyed during her
marriage. The court reduced her expected monthly expenses in three
ways.
_____________________________________________________________
60 See UTAH R. CIV. P. 52(a)(4) (“Findings of fact, whether based on
oral or other evidence, must not be set aside unless clearly
erroneous, and the reviewing court must give due regard to the trial
court’s opportunity to judge the credibility of the witnesses.”).
25
GARDNER v. GARDNER
Opinion of the Court
¶ 74 First, the court reduced the amount of her expected housing
expenses from $2,445 per month to $1,600 per month. It explained
that $1,600 “should be an adequate amount, particularly given . . . the
large settlement that’s coming out of the sale of the house.”
According to the court, this amount would allow Ms. Gardner “to
purchase a modest home, probably on the west side of the freeway
rather than in [her former neighborhood], or to rent a three bedroom
apartment [in that neighborhood].” Because she would likely be
living in a smaller home, the court reduced her expected utility bills
to $75 per month for electricity and $50 per month for gas.
¶ 75 Second, the court reduced the amount of an expected
automobile loan from $533 to $250. It explained that “given the goal
is not equalization,” it was reasonable to provide her with an amount
sufficient to purchase “a smaller more fuel efficient car” rather than
the more expensive SUV she had requested. The court also reduced
her expected gasoline expenses because it believed she could “find a
car that gets better than 12 or 13 miles to the gallon.”
¶ 76 Finally, the court declined to include any expenses for
education because there was “no evidence . . . that during the course
of the marriage or even during the course of the separation that
Ms. Gardner ha[d] sought educational opportunities that require
payment.”61 After making these downward adjustments, the court
estimated Ms. Gardner’s monthly expenses to be $5,437 per month—
a reduction of $1,513 per month from her reasonably expected
monthly expenses during marriage.
¶ 77 Although Ms. Gardner attempts to portray these
adjustments in drastic terms, she fails to persuade us that the court
acted unreasonably or that she has suffered a serious inequity.
Section 30-3-5(8) authorizes courts to consider fault in deciding
whether to depart from the goal of equalizing the parties’ respective
standards of living at the standard of living they enjoyed during the
marriage. And once a court decides to base a party’s alimony award
on a lower standard of living than he or she enjoyed during
marriage, it will inevitably have to reduce that party’s expected
monthly expenses. In practice, this will require the court to reduce
the costs of specific line items in that person’s budget. That is what
the court did in this case.
_____________________________________________________________
61 The court noted, however, that if Ms. Gardner wished to
pursue education opportunities in the future, there would be “ways
of obtaining financing for [education] outside of alimony.”
26
Cite as: 2019 UT 28
Opinion of the Court
¶ 78 Because the court was authorized, under section 30–3–5(8),
to reduce Ms. Gardner’s standard of living, and Ms. Gardner has not
demonstrated that the reduced standard of living results in serious
inequity, we hold that the court did not abuse its discretion in
reducing Ms. Gardner’s expected monthly expenses.
2. The district court’s reduction of the duration of Ms. Gardner’s
award did not constitute an abuse of discretion
¶ 79 Similarly, we hold that the district court did not abuse its
discretion in reducing the duration of Ms. Gardner’s alimony award.
Ms. Gardner argues the district court abused its discretion in
awarding alimony for a period of ten years rather than the statutory
maximum of twenty-two years. It did not.
¶ 80 Utah code section 30-3-5(8)(j) states that alimony “may not
be ordered for a duration longer than the number of years that the
marriage existed.” So, under the statute, a twenty-two year alimony
award was the maximum amount for which alimony could be
awarded. Importantly, nothing in the statute bars “an award for a
shorter duration.”62 For this reason “an alimony award for shorter
than the term of the marriage [should] be upheld unless it results in a
serious inequity evidencing an abuse of . . . discretion.”63
¶ 81 Utah courts regularly uphold alimony awards for periods
shorter than the term of the marriage.64 For example, in Warren v.
Warren, we upheld a four-year alimony award despite the couple
having been married for close to thirty years.65 In that case the
receiving spouse argued the alimony award was insufficient in
amount and duration because she had “no previous work experience
and . . . she suffer[ed] a ‘medical disability of the hands.’”66 But we
_____________________________________________________________
62 Jensen v. Jensen, 2008 UT App 392, ¶ 16, 197 P.3d 117.
63 Id.
64 See Warren v. Warren, 655 P.2d 684, 688 (Utah 1982) (affirming
an alimony award for a four-year period after a twenty-seven year
marriage); Jensen, 2008 UT App 392, ¶ 20 (affirming an alimony
award for a five-year period after a sixteen-year marriage); Davis v.
Davis, 2003 UT App 282, ¶¶ 4, 10, 76 P.3d 716 (affirming an alimony
award for a ten-year period after a thirty-five year marriage); Childs
v. Childs, 967 P.2d 942, 947 (Utah Ct. App. 1998) (affirming a
temporary alimony award after a five–year marriage).
65 Warren, 655 P.2d at 688.
66 Id.
27
GARDNER v. GARDNER
Opinion of the Court
rejected the receiving spouse’s argument because “no evidence in the
record show[ed] [the spouse] to be unemployable,” “she presented
no testimony or other evidence to show any impairment of the use of
her hands,” and “the record [did not] disclose any other
circumstance which might prevent [the spouse] from acquiring
employable skills.”67 For these reasons, we concluded that the
alimony award of four years “ensure[d] ample time for the
acquisition of [sufficient] skills prior to the termination of alimony.”68
¶ 82 Thus, our caselaw makes clear that district courts may
award alimony for a period shorter than the length of the marriage.
Our only task on appeal, therefore, is to ensure that the shortened
terms of an alimony award do not result in “a serious inequity” to
one of the parties.69
¶ 83 With this goal in mind we have previously held that it is an
abuse of discretion to award alimony for a shortened period when it
is unlikely the receiving spouse would be able to maintain the same
standard of living after the alimony period ended.70 Thus, before
ordering an alimony award of an overly short duration, appellate
courts often require district courts to demonstrate that the recipient
spouse can “close the gap between actual expenses and actual
income” and thereby support him or herself when the alimony
period ends.71
¶ 84 Importantly, the length of an alimony award, on its own,
can be a deciding factor in demonstrating whether the receiving
spouse will be able to close the gap between expenses and actual
income. For example, in Jensen v. Jensen, the court of appeals affirmed
_____________________________________________________________
67 Id.
68 Id.
69 Jensen, 2008 UT App 392, ¶ 16.
70 See Jones, 700 P.2d at 1076 (holding that a shortened,
“rehabilitative” award “was inequitable” where the wife was “in her
mid-50’s, possesse[d] few marketable job skills, and ha[d] little hope
of retraining”); Mark, 2009 UT App 374, ¶ 15 (reversing an alimony
award where the recipient spouse was fifty-two years old, the parties
had been married for twenty-five years, the recipient spouse’s
earning capacity was a fraction of the breadwinner’s earning
capacity, and the recipient spouse had weak employment prospects).
71 Mark, 2009 UT App 374, ¶ 12 (citation omitted) (internal
quotation marks omitted).
28
Cite as: 2019 UT 28
Opinion of the Court
an alimony award for a five-year-period after the end of a
sixteen-year marriage.72 As Ms. Gardner argues in this case, the
receiving spouse in Jensen contended that “her advanced age and her
lack of significant work experience outside the home” made it
necessary to award alimony equal to the entire length of the
marriage.73 And the spouse claimed that the district court had
abused its discretion because “no evidence was presented to the trial
court indicating that she ‘had the necessary education or work skills
to increase her income’ within the five-year period so as to cover her
monthly shortfall or that her circumstances would be any different in
five years than at the time of trial.”74 But the court of appeals
affirmed the alimony award because it concluded that five years
provided the receiving spouse enough time to “put her house in
order and be able to support herself.”75 This reasoning applies just as
well to the facts of this case.
¶ 85 In this case, the court ordered the alimony to terminate in
ten years and then stated it “want[ed] to give [Ms. Gardner] some
incentive to start working and be able to be self sufficient.” The court
explained that “at that point [Ms. Gardner is] going to need to be in a
position to be able to take care of herself and so it’s important that
she start getting some education or work experience.” Because ten
years provides Ms. Gardner a reasonable amount of time to pursue
an education or work experience that would allow her to close the
gap between expenses and actual income, the court did not err by
ordering a ten-year alimony award.
¶ 86 Additionally, there is evidence on the record to suggest that
Ms. Gardner should share some of the responsibility for her lack of
work experience and marketable skills. Mr. Gardner testified that he
frequently encouraged Ms. Gardner to gain work experience or
obtain more education. But Ms. Gardner declined to do so. In Warren,
we refused to place the burden of a wife’s lack of work experience or
marketable skills fully on a husband who had “encouraged [his wife]
to finish work on her baccalaureate degree and to find a job, [even
though the wife] had not done so.”76 As the court found in Warren,
_____________________________________________________________
72 2008 UT App 392, ¶ 19.
73 Id. ¶ 18.
74 Id.
75 Id. ¶ 19 (internal quotation marks omitted).
76 655 P.2d at 688.
29
GARDNER v. GARDNER
Opinion of the Court
evidence on the record in this case suggests that it would be unfair to
impose the financial burden stemming from Ms. Gardner’s lack of
earning capacity fully upon Mr. Gardner. So this reason also
supports the court’s reduction.
¶ 87 Finally, even were we to assume that the length of the
alimony award is inequitable when only economic factors are
considered, the ten-year alimony period is justified by Ms. Gardner’s
statutorily recognized fault. Section 30-3-5(8)(b) allows district courts
to consider fault in determining the terms of the alimony award. And
we have previously recognized that fault may be considered in
establishing the length of an alimony award.77
¶ 88 In this case, the district court expressly tied the shortened
alimony duration to its finding of fault. It did not abuse its discretion
in doing so. The court stated that it seemed unfair to impose a
continuing burden of support on Mr. Gardner. Because it is
reasonable to conclude that imposing an alimony award for
twenty-two years upon Mr. Gardner, where it was Ms. Gardner’s
conduct that caused the divorce, would not be “fair, just, and
equitable,” we conclude that the court did not abuse its discretion in
shortening the duration of the alimony period, even were we to
assume that the duration is not justified solely by economic factors.78
¶ 89 In sum, the district court did not abuse its discretion in
setting a ten-year alimony period, because (1) ten years reasonably
provides Ms. Gardner with enough time to become self-sufficient,
(2) Ms. Gardner shares at least some of the blame for her lack of
marketable skills and work experience, and (3) even assuming the
duration is not justified by economic factors alone, the shorter
alimony period is equitable in light of Ms. Gardner’s fault.
_____________________________________________________________
77 Wilson, 296 P.2d at 980 (“[C]ourts have seen fit to impose upon
the erring [spouse] the burden of permanent alimony.” (emphasis
added)).
78 See Riley, 2006 UT App 214, ¶ 23 (explaining that a spouse’s
“fault goes a long way in explaining the propriety of a $900 per
month alimony award, even though such an award would be too
high if only economic factors were considered”).
30
Cite as: 2019 UT 28
Opinion of the Court
3. The district court did not abuse its discretion in establishing a
gradual decrease in the alimony amount over the final years of the
award
¶ 90 We also hold that the district court did not abuse its
discretion by providing for a gradual decrease in the alimony
amount over the final years of the award. Although Ms. Gardner
admits that “stepdown awards, like shortened awards, are not per se
inappropriate,” she argues that this step-down award is
inappropriate because it “does not allow [her] to meet her needs.”
Because there is evidence on record that the terms of the alimony
award will allow Ms. Gardner to become self-sufficient before the
alimony period expires, the court’s implementation of the step-down
feature does not constitute an abuse of discretion.
¶ 91 The district court awarded alimony to Ms. Gardner for ten
years, with an incremental annual decrease after the minor children
leave the home. The court suggested that Ms. Gardner use this time
to “start getting some education or work experience.” But
Ms. Gardner argues that the district court’s suggested ideas for how
Ms. Gardner could become self-sufficient do not “recognize reality.”
Specifically, she argues that the evidence suggests she will not be
able to get work experience, and the court did not structure her
alimony amount to allow her to get an education. But Ms. Gardner
fails to show that the court’s suggestions are unsupported by the
evidence.
¶ 92 The record includes evidence that Ms. Gardner could begin
working and thereby get meaningful work experience during the
ten-year alimony period. The district court found that “because of
her position in life[,] and the fact she does have some skills[,] . . . she
probably can find a job earning more than minimum wage.”
Ms. Gardner argues this is unrealistic because she “has only a
high-school diploma and no meaningful job history.” But the record
suggests she has other marketable skills. Ms. Gardner testified to
having earned money teaching swimming, piano, sewing, and art
classes. Additionally, at times during the marriage she has earned
sizeable commissions for her artwork, with the largest commission
being $5,000 for two or three weeks of work.
¶ 93 Ms. Gardner argues, however, that there was not “any
evidence that her health would allow her to work.” But the burden at
trial was on Ms. Gardner to provide evidence that her health would
31
GARDNER v. GARDNER
Opinion of the Court
not allow her to work.79 And the district court determined that
Ms. Gardner did not provide any evidence to suggest that she is
incapable of working. In fact, the evidence indicates just the opposite.
Ms. Gardner testified she had worked part-time earning $11.00 per
hour before and after her accident. And she testified she would like
to pursue teaching sewing and other art classes as a career because it
is something she can do even with her health problems.
¶ 94 Ms. Gardner also argues that there is no evidence she can
earn sufficient income because Mr. Gardner “did not enlist a
vocational expert to testify to available jobs for which [Ms. Gardner]
was qualified.” But once again this argument fails because the
burden was on Ms. Gardner to provide evidence that there were no
viable career options.80 And by providing Ms. Gardner with ten years
of alimony, the court gave her sufficient time to find a viable career
path.
¶ 95 Ms. Gardner also argues, in a single paragraph, that the
court was not being realistic when it suggested that she pursue
additional education, because it declined to consider her requested
$675 per month for educational costs as part of her expected monthly
expenses. But the court’s decision to exclude these monthly expenses
was based on the fact that “there was no evidence or testimony
presented to the court that [Ms. Gardner] ha[d] been seeking
educational opportunities that requir[e] payment.”81 Because
Ms. Gardner has not explained what kind of educational opportunity
she might pursue in the future, it is impossible to assess the cost of
that education. Accordingly, the district court did not abuse its
discretion by denying her request for additional education expenses.
_____________________________________________________________
79 Dahl, 2015 UT 79, ¶ 95 (explaining that a “party seeking
alimony bears the burden of demonstrating to the court that the
[relevant alimony] factors support an award”); see also Warren, 655
P.2d at 688 (affirming the district court’s determination that a wife’s
alleged physical impairment of her hands did not prevent her from
working because “she presented no testimony or other evidence to
show any impairment of the use of her hands”).
80 Dahl, 2015 UT 79, ¶¶ 95–98 (affirming the district court’s
decision to award no alimony because the wife had failed to
demonstrate her financial need and earning capacity).
81 The court’s decision to exclude unsubstantiated expenses from
its need calculation was fully within its discretion.
32
Cite as: 2019 UT 28
Opinion of the Court
¶ 96 Additionally, it is important to note that the district court
awarded Ms. Gardner half of the marital estate, an award that
includes $153,000 for her half of the marital home; half the value of
property in Driggs, Idaho; half the value of a promissory note for
property in Summit County, Utah; and half the value of all
“retirement, 401(k), investment, savings, IRA, and other similar
accounts.” With Ms. Gardner’s sizeable share of the marital property
in mind, it seems reasonable that she could afford to pursue an
education under the terms of the alimony award. Additionally, the
court included an allotment in her monthly expenses for a car
payment, despite the fact that she received a 2007 Yukon Denali that
was fully paid off. So, under the terms of the court’s award, until
Ms. Gardner purchases a new car, she has an extra $250 per month
with which she could pursue an education.
¶ 97 Lastly, Ms. Gardner suggests that the court abused its
discretion by suggesting that, if she is “indeed disabled,” she could
“seek income from a government or charitable disability program.”
But the court expressly determined that Ms. Gardner had not met her
burden of establishing that she was disabled and it structured the
alimony award accordingly. This comment by the district court, then,
is most reasonably understood as the court’s attempt to reassure
Ms. Gardner that even were it incorrect in determining that she was
not disabled, she would not be without recourse. Because there is
evidence to support the court’s determination that Ms. Gardner
could work, and could become self-sufficient within the ten-year
alimony period, the court did not abuse its discretion in including the
step-down provision in the alimony award.
4. The district court did not err by imputing income to Ms. Gardner
at $1,300 per month
¶ 98 Fourth and finally, Ms. Gardner argues that the district
court erred by imputing “an arbitrary $1,300 per month [income],
even while stating that she was not capable of working.” “In divorce
cases where there is insufficient evidence of one of the statutory
alimony factors, courts may impute figures.”82 “The trial court in a
_____________________________________________________________
82 Id. ¶ 116; see also Connell v. Connell, 2010 UT App 139, ¶¶ 14–20,
233 P.3d 836 (imputing husband’s income from a prior job to
determine his ability to pay alimony); Leppert v. Leppert, 2009 UT
App 10, ¶ 12, 200 P.3d 223 (holding that the district court did not
abuse its discretion in imputing an income figure for wife when the
decision was “adequately supported” by the district court’s
findings).
33
GARDNER v. GARDNER
Opinion of the Court
divorce action is permitted considerable discretion in adjusting the
financial and property interests of the parties, and its actions are
entitled to a presumption of validity.”83 So a court’s decision to
impute income to a spouse, and its decision on the amount of income
that ought to be imputed are each reviewed for an abuse of
discretion.84 A court does not abuse its discretion in imputing income
to a spouse if the court determines that the spouse “is voluntarily
unemployed or underemployed.”85 But we need not determine
whether the district court erred on this point, because Ms. Gardner
invited it to impute income at minimum wage.
¶ 99 “Under the invited error doctrine, we [may] decline ‘to
engage in plain error review when counsel made an affirmative
statement that led the court to commit the error.’”86 In this case,
Ms. Gardner, through her counsel, made an affirmative statement
that led the court to impute income at minimum wage level. On the
last day of trial, Ms. Gardner’s attorney stated that imputing income
at minimum wage was “appropriate under the law and under the
statute.” Although it is unclear to which statute Ms. Gardner was
referring, the most likely one is Utah Code section 78B-12-203, which
provides the criteria for imputing income in the child support
context. According to Utah Code section 78B-12-203(8)(c), a “parent
may be imputed an income at the federal minimum wage for a
40-hour work week” if that “parent has no recent work history or a
parent’s occupation is unknown.”87 Thus Ms. Gardner’s counsel
invited the court to impute income pursuant to a statute that
requires, as its default, a court to impute income at minimum wage
for a forty-hour work week.
¶ 100 And it is clear that this invitation led the court to commit
the alleged error. During trial the following day, the court indicated
_____________________________________________________________
83 Goggin, 2013 UT 16, ¶ 44 (citation omitted) (internal quotation
marks omitted).
84 Reese v. Reese, 1999 UT 75, ¶ 17, 984 P.2d 987.
85Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455 (citation
omitted) (internal quotation marks omitted).
86 State v. Ring, 2018 UT 19, ¶ 20, 424 P.3d 845 (citation omitted).
87 UTAH CODE § 78B-12-203(8)(c). This section also states that
before a court may “impute a greater or lesser income, the [court] . . .
shall enter specific findings of fact as to the evidentiary basis for the
imputation.”
34
Cite as: 2019 UT 28
Opinion of the Court
it was imputing income at a minimum wage level based on
Ms. Gardner’s counsel’s suggestion. Specifically, the court explained
that its “notes . . . indicated that [Ms. Gardner’s counsel] suggested
imputing minimum wage was . . . a fair way to calculate things.” The
court then stated it was “going to impute income of $1,300 a month
to [Ms. Gardner], which is a full-time minimum wage income.”
Ms. Gardner did not object to this number.88
¶ 101 Because Ms. Gardner conceded that imputing income at
minimum wage was appropriate under the law, which states that
income may be imputed at minimum wage for forty hours per week
when there is no work history, and this concession led the court to
impute income at minimum wage for forty hours per week, we,
under the invited error doctrine, decline to address this issue.
III. The District Court Did Not Plainly Err in Failing to
Consider Ms. Gardner’s Tax Burden
¶ 102 Ms. Gardner also argues that the court plainly erred in
establishing the terms of alimony because it failed to consider taxes
she must pay on alimony, and it applied her gross income rather
than her net income to its calculations. To demonstrate plain error, an
appellant must show “(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is harmful.” 89
Although the court may have committed an error in this case,
Ms. Gardner has failed to meet her burden of showing that the
alleged error was harmful. Accordingly, we affirm the district court’s
alimony determination on this point.
¶ 103 An error is harmful where, “absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.”90 “The burden of showing such a likelihood rests on the
_____________________________________________________________
88 On appeal, Ms. Gardner points out that $1,300 is technically not
minimum wage, and she is correct on this point. Minimum wage at
forty hours per week would come out to $1,256.67 per month.
Because the difference—$43.33—is not significant, and there is
evidence in the record to support an imputation of an amount
greater than minimum wage, the imputation of $1,300 per month
falls within the district court’s range of discretion. See Goggin, 2013
UT 16, ¶ 44.
89 State v. Johnson, 2017 UT 76, ¶ 20, 416 P.3d 443 (alteration in
original) (citation omitted) (internal quotation marks omitted).
90 State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation omitted)
(internal quotation marks omitted).
35
GARDNER v. GARDNER
Opinion of the Court
complaining party.”91 Because Ms. Gardner has made no attempt to
show that the court’s failure to take taxes into consideration resulted
in harm, she has failed to meet her burden on the error prong.
¶ 104 In Ms. Gardner’s opening brief, her argument in support of
a finding of harm is limited to a single sentence: “Here, the error is
harmful [because] paying taxes further reduces [my] ability to meet
[my] need.” But she never states what the resulting tax consequences
of the court’s alleged error are nor what they would have been had
the district court fully considered the tax implications of the alimony
award. As Mr. Gardner points out in his response brief,
Ms. Gardner’s failure to provide this information is fatal to her
argument.
¶ 105 According to Mr. Gardner, her effective tax bracket, and
the tax deductions available to her, make it “more than likely [that
she would] have no tax liability.” Although Ms. Gardner, in her reply
brief, attempts to rebut this argument by suggesting that
Mr. Gardner’s calculations are incorrect or speculative, she once
again makes no effort to explain what the actual tax consequences of
the court’s error are or what they would have been had the court
considered the tax implications of its award. So Ms. Gardner fails to
satisfy her burden of showing that the court’s failure to consider the
tax burden of her alimony award was harmful.
¶ 106 Additionally, Ms. Gardner also fails to satisfy her burden
of persuasion regarding the court’s alleged error in applying a gross
imputed income rather than a net one. Mr. Gardner argues that she
failed to satisfy her burden because it is not clear whether the district
court intended the imputed income of $1,300 to be her gross or her
net income. And he argues that even if the income was intended to
be her gross income, the resulting reduction in her income would
have been so slight as to be well within the court’s discretion. We
agree for two reasons.
¶ 107 First, the district court never indicated whether the
imputed income was intended to be her gross or net income. Because
marital property distributions are “entitled to a presumption of
validity” in the divorce context, we need not assume the court
incorrectly intended the imputed amount to represent her gross
income.92 Second, Ms. Gardner does not address either of
_____________________________________________________________
91 State v. Arguelles, 2003 UT 1, ¶ 94, 63 P.3d 731.
92 Goggin v. Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (citation
omitted) (internal quotation marks omitted).
36
Cite as: 2019 UT 28
Opinion of the Court
Mr. Gardner’s arguments nor does she make any attempt to support
her conclusory statement that the alleged error harmed her. So there
is nothing to support her allegation that she was harmed by the
court’s alleged error.
¶ 108 Because Ms. Gardner has failed to show that the court’s
alleged errors were harmful, we affirm the district court on this
point.
IV. We Affirm the District Court’s Attorney Fee Decision
¶ 109 Finally, Ms. Gardner argues the district court abused its
discretion by declining to award her attorney fees pursuant to Utah
Code section 30-3-3, which states that “in any action to establish an
order of . . . alimony . . . , the court may order a party to pay the costs,
attorney fees, and witness fees, including expert witness fees, of the
other party to enable the other party to prosecute or defend the
action.”93 “The decision of whether to award attorney fees pursuant
to section 30-3-3 of the Utah Code rests in the sound discretion of the
district court.”94
¶ 110 Ms. Gardner argues the district court abused its discretion
in declining to award attorney fees because there were “insufficient
factual findings” to support its decision. We disagree.
¶ 111 The district court’s attorney fee determination was
supported by sufficient evidence. The court stated that its denial of
Ms. Gardner’s attorney fee request was “based in part” on the fact
that it was “aware that there is substantial payment coming out of
the home that should be sufficient to be able to pay for attorney’s fees
and leave plenty to be able to purchase a new home with.”
Ms. Gardner argues that this finding is insufficient because “the
alimony award ensures that [Ms. Gardner’s] and [Mr. Gardner’s
needs] are grossly disproportionate.”
¶ 112 But this argument misconstrues the language of
section 30-3-3, which authorizes a district court to award attorney
fees in order to “enable the [non-paying] party to prosecute or
defend the action.” In this case, the court found that Ms. Gardner’s
property disbursement was “sufficient” to cover her legal expenses.
This is supported by record evidence. As part of Ms. Gardner’s
property disbursement, she is expected to receive an estimated
$153,000 from the sale of the parties’ marital home. And at trial,
_____________________________________________________________
93 UTAH CODE § 30-3-3(1) (emphasis added).
94 Dahl v. Dahl, 2015 UT 79, ¶ 168, ---P.3d---.
37
GARDNER v. GARDNER
Opinion of the Court
Ms. Gardner estimated that her legal costs would be close to $25,000.
Because the $153,000 payment would be more than sufficient to cover
the estimated $25,000 in attorney fees she had incurred in litigating
the divorce, the district court’s decision declining to award attorney
fees to Ms. Gardner is supported by the facts of the case.
Accordingly, we affirm the district court’s attorney fee
determination.
Conclusion
¶ 113 Because the district court did not abuse its discretion in
determining Ms. Gardner’s conduct constituted fault or in
establishing the terms of her alimony award, we affirm the district
court’s alimony determination. Additionally, we hold that
Ms. Gardner failed to establish that the district court’s failure to
consider relevant tax consequences constituted a harmful error.
Finally, we affirm the district court’s decision to decline to award
attorney fees to Ms. Gardner because this decision was not an abuse
of discretion.
38