Farnsworth v. Farnsworth

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
Paige Christine Farnsworth, ) OPINION
)
Petitioner and Appellee, ) Case No. 20110317‐CA
)
v. ) FILED
) (October 12, 2012)
Loren Kelly Farnsworth, )
) 2012 UT App 282Respondent and Appellant. )
‐‐‐‐‐
Seventh District, Castle Dale Department, 104700061
The Honorable Douglas B. Thomas
Attorneys: Don M. Torgerson and Samuel P. Chiara, Price, for Appellant
McKette H. Allred, Castle Dale, for Appellee
‐‐‐‐‐
Before Judges Orme, Thorne, and McHugh.
THORNE, Judge:
¶1 Loren Kelly Farnsworth (Husband) appeals from the district court’s Decree of
Divorce and Findings of Facts and Conclusions of Law, which awarded Paige Christine
Farnsworth (Wife) alimony in the amount of $1,300 a month. We affirm the district
court’s determination that Wife will have a monthly housing expense of approximately
$700, and this opinion represents the majority opinion on that issue. We reverse the
district court’s alimony award to the extent that it relied on a finding that Wife’s
monthly need included $200 for animal feed for a minor daughter’s horses and livestock
animals. On this second issue, Judge McHugh’s separate opinion represents the
majority opinion of the court.
BACKGROUND
¶2 Husband and Wife married in August 1988. Shortly thereafter, they acquired a
1900s‐era house on 2.83 acres of real property, where they lived together with their
children for the duration of the marriage. Wife maintained horses on the property, and
the children raised horses and other livestock animals for 4‐H Club. The parties never
made any improvements to the house and only made critical repairs as necessary. Early
on, this was because they feared that they might lose the house. After the house was
paid off, most of the parties’ discretionary income went toward supporting Husband’s
hunting hobby, and the house fell further into disrepair. At the time of trial, the house
and property together appraised at $68,000.
¶3 Wife petitioned for divorce in May 2010 after learning that Husband was having
an affair. At this time, the parties’ only remaining minor child was a 12‐year‐old
daughter (Daughter). The parties reached a settlement on all outstanding issues in the
divorce except for alimony and property division. Pursuant to the parties’ settlement,
Wife was to have primary physical custody of Daughter, and Husband was to pay $712
in monthly child support. The matter went to trial on the remaining issues in February
2011.
¶4 At trial, the proper amount to attribute to Wife’s monthly housing expenses was
disputed. Husband argued that Wife should be awarded the paid‐off marital home to
live in, leaving her with minimal monthly housing expenses. In the alternative,
Husband argued that Wife’s housing expenses should be limited to an amount that
would reflect the standard of living that had been established over the course of the
marriage, i.e., $450 per month reflecting the mortgage payment on a $68,000 property.
Wife did not want to continue living in the marital home due to the needed repairs and
testified that she had found a suitable home and property in the area that was available
for purchase at $185,000. Wife argued for a monthly housing expense of $912, the
amount required to service a $185,000 mortgage. Wife also testified that apartments in
the area rented for $600 a month but that if she lived in an apartment she would have to
board the horses at a cost of $200 per horse per month.1
1
At the time of trial, Wife testified that she cared for four horses on the marital
property, two belonging to Daughter and two belonging to an adult daughter of the
(continued...)
20110317‐CA 2
¶5 The parties also disputed Wife’s claimed $300 monthly expense for care of the
horses and livestock. Husband argued that Wife’s actual monthly expense for the
animals was less than $300, but he also objected to the animal expenses being
considered in the alimony equation at all. Husband argued that the horses and
livestock animals belonged to the parties’ children and that he should not be required to
pay alimony based on an expense that would cease to be Wife’s responsibility once
Daughter attained the age of majority.2
¶6 At the conclusion of trial, the district court issued an oral ruling. The district
court awarded the marital home and property to Husband. Husband was ordered to
pay Wife one half of the appraised value, or $34,000, as her equity in the property. The
district court also ordered that all of the parties’ personal property, with the exception
of certain horses and property belonging to or used by the parties’ children, be sold.
The proceeds were to be used to retire the debt on a horse trailer, with any remaining
proceeds to be divided equally between the parties.
¶7 The district court found that Wife’s housing expenses would be $700 or $710 per
month, reflecting the mortgage payment on a hypothetical $140,000 home and horse
property. The district court rejected Wife’s proposed purchase of the $185,000 house,
finding that “that is likely excessive when compared to the home that has been enjoyed
during the marriage, and the lifestyle that was enjoyed during the marriage.” However,
the district court also rejected Husband’s argument that Wife should remain in the
marital home or be limited to servicing a $68,000 mortgage.
¶8 The district court made extensive fact findings on the housing issue. The court
found that the bulk of the $68,000 value of the marital home and property was
attributable to the value of the land, that the home had been “allowed to fall into
substantial disrepair recently,” and that Husband was chiefly responsible for the state
of disrepair. The court determined that Wife did not “have the skills to be able to bring
[the] home into a habitable structure” but that Husband did. The court then stated,
1
(...continued)
parties. Wife testified that she had personally owned a fifth horse but that it had
recently died.
2
Husband did offer at trial to pay 50% or even 75% of the expenses for
Daughter’s animals during the period that she would remain a minor.
20110317‐CA 3
The Court believes, particularly in light of the fact that
[Wife] is going to have custody of the [parties’] minor child,
who is a young child, that it’s appropriate for [Wife] to be
able to find living arrangements that she can—where she can
house the child similar to where they have lived that would
be habitable. And while [a] $180,000 home may not be
appropriate, the Court does believe that she should be able
to find something in the neighborhood of $140,000, including
horse property, that would allow her to maintain the minor
child in a lifestyle and with the type of home that the parties
have enjoyed during the marriage.
In determining that Wife’s monthly expense for this $140,000 housing would be $700 to
$710, the court observed that “[Wife] testified that she cannot rent a home for anything
less than—not even a home, but an apartment, for less than $600 per month.”
¶9 On the issue of animal expenses, the district court allocated Wife a $200 per
month expense for feed for Daughter’s two horses and livestock, stating that such an
amount would be “fair and appropriate.” The court acknowledged that Wife was also
caring for the adult daughter’s two horses but stated that the adult daughter “also has
some responsibility” for those horses.
¶10 The district court determined that Wife’s net income from her two jobs was
$1,100 per month and her total monthly income—taking into account the $712 per
month child support award—was $1,812. Wife’s monthly expenses—including the
housing and animal expenses described above—were found to be between $3,130 and
$3,140, leaving her with unmet financial need of roughly $1,300 per month. The district
court found that Husband’s monthly income was $5,396, with $2,070 per month
available to pay alimony after expenses. The district court subtracted an additional
$560 from Husband’s available income to account for what the district court estimated
might be as much as $70,000 in needed repairs to the marital home. Even with this
deduction, Husband’s available income remained sufficient to cover Wife’s unmet need,
and the district court awarded Wife $1,300 per month in alimony for a period of time
equal to the duration of the marriage, roughly twenty‐two years.
¶11 The district court issued its Decree of Divorce and Findings of Facts and
Conclusions of Law on March 15, 2011. The district court’s written findings largely
20110317‐CA 4
reflected its oral ruling, including its $1,300 alimony award. The written findings
included “that [Husband] allowed the home to fall in disrepair,” that “[Husband] bears
the responsibility for the home’s decline in value,” and that “[Daughter] deserves to
have an appropriate place to live and stay when she is with each parent.” The district
court also clarified its ruling on the animal expenses, stating, “The Court will allow
$200.00 a month for the horses and animal feed. This accounts for [Daughter’s] two
horses and stock feed. The adult child will need to be responsible to pay for her two
horses.” Husband appeals.
ISSUES AND STANDARD OF REVIEW
¶12 Husband argues that the district court abused its discretion in determining
Wife’s housing expenses based on a home worth $140,000 when the parties’ home
during the marriage was only worth $68,000. Husband also argues that it was an abuse
of discretion to allow Wife $200 in monthly expenses for Daughter’s animal feed when
those expenses would cease to be Wife’s responsibility once Daughter reached the age
of majority. Husband argues that these two determinations erroneously increased the
district court’s determination of Wife’s total monthly need and resulted in an inflated
alimony award. “‘In a divorce proceeding, the trial court may make such orders
concerning property distribution and alimony as are equitable. The trial court has
broad latitude in such matters, and orders distributing property and setting alimony
will not be lightly disturbed.’” Olsen v. Olsen, 2007 UT App 296, ¶ 8, 169 P.3d 765(quoting Jones v. Jones, 700 P.2d 1072, 1074 (Utah 1985)). “Therefore, we review alimony
awards under an abuse of discretion standard.” Id.ANALYSIS
¶13 Husband challenges the district court’s alimony award, arguing that two
erroneous rulings by the district court resulted in an artificially high determination of
Wife’s unmet financial need. Husband argues that Wife’s monthly housing expenses
should have been limited to much less than the approximately $700 per month found by
the district court. Husband also argues that the $200 per month for Daughter’s horse
and livestock feed should not have been treated as part of Wife’s need for purposes of
the alimony determination. Reducing Wife’s housing expenses and eliminating the
animal feed expense would reduce Wife’s established monthly need—and, as a result,
20110317‐CA 5
Husband’s monthly alimony obligation—by hundreds of dollars. See generally Bingham
v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (“[T]he spouse’s demonstrated
need must . . . constitute the maximum permissible alimony award.”). We are thus
called upon to determine whether the district court exceeded the boundaries of its
discretion in calculating Wife’s monthly financial need based on expenses of $700 for
housing and $200 for the feeding of Daughter’s horses and livestock animals.
I. Wife’s Housing Expenses
¶14 Husband’s first argument is that the district court’s determination of Wife’s
housing expenses should have been limited to placing Wife in the same standard of
living that she had enjoyed over the twenty‐plus years of the parties’ marriage.
According to Husband, this standard of living constituted a hundred‐year‐old, $68,000
home rather than the hypothetical $140,000 home that the district court used in
determining Wife’s monthly housing need. Husband also argues that the district
court’s determination that the marital home would need $70,000 of repairs, after which
it would also be worth $140,000, was a “transparent effort to justify the inflated housing
costs for Wife” and attempted to equalize the parties’ income in violation of precedent.3
See Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173 (mem.) (“[T]he courts will
equalize the incomes of the parties only in those situations in which one party does not
earn enough to cover his or her demonstrated needs and the other party does not have
the ability to pay enough to cover those needs.”).
¶15 We see no abuse of discretion in the district court’s use of a hypothetical $140,000
home to determine that Wife’s monthly housing costs would range from $700 to $710
per month. It is undisputed that Wife was accustomed to living in a single‐family home
on property suitable for keeping horses, making that the appropriate measure of her
3
Husband also asserts that the district court expressly indicated that it had “no
intention of limiting its alimony award to Wife’s historical standard of living” when it
stated, “‘It’s unrealistic for [Husband] to presume that [Husband’s] going to get away
with a $300 or $400 alimony a month award on a 22 ½ year marriage.’” (Alterations in
original.) Husband misrepresents the district court’s actual comment, which was, “It’s
unrealistic for him, when he’s earning approximately $7,500 a month and she’s earning $1,200
a month, to presume that he’s going to get away with a $300 or $400 alimony a month
award on a 22‐1/2 year marriage.” (Emphasis added.)
20110317‐CA 6
housing needs. See generally Martinez v. Martinez, 818 P.2d 538, 542 (Utah 1991)
(“Usually the needs of the spouses are assessed in light of the standard of living they
had during marriage.”). The district court rejected Wife’s proposed $185,000 home, but
nevertheless determined that she was entitled to living arrangements “where she can
house [Daughter] similar to where they have lived that would be habitable.”
¶16 Husband does not challenge the district court’s determination that such housing
arrangements would cost approximately $140,000; rather, Husband focuses on the age,
size, and value of the marital home to argue that Wife should be limited to housing
costing $68,000. This argument fails to account for the district court’s determinations
that Wife was entitled to habitable housing and that the marital home was currently
uninhabitable due to Husband’s neglect.4 Further, the court made express findings that
the $68,000 appraisal of the marital home largely reflected the value of the real property,
that there was “little value in the home,” and that Husband “bears the responsibility for
the home’s decline in value.” In light of these considerations, the $68,000 value of the
marital home has little relevance in determining Wife’s current need for habitable
housing for herself, Daughter, and the horses.5
¶17 As to the district court’s findings regarding repairs to the marital home, we agree
with Husband that there is scant evidence in the record to support the district court’s
findings that the marital home would require $70,000 of repairs and would be worth
4
Although the district court did not expressly find that the marital home was
uninhabitable, that is the unmistakable inference from its findings that the marital home
was in “disrepair” and that repairs would be necessary to “bring the home into a
habitable structure.”
5
The district court also observed that “[Wife] testified that she cannot rent a home
for anything less than—not even a home, but an apartment, for less than $600 per
month.” Wife also testified that, if she rented an apartment, boarding for the horses
would cost “a couple hundred per horse.” Had the district court opted to base Wife’s
housing needs on an apartment and boarding for two horses, her testimony would have
supported a monthly need of $1,000, a figure greater than the $900 to $910 per month
that the district court actually allocated for Wife’s housing and horse‐related needs.
20110317‐CA 7
$140,000 thereafter.6 However, contrary to Husband’s assertions, the district court’s
findings do not appear to have been used to inflate Wife’s housing costs or equalize the
parties’ incomes or housing situations. Rather, the district court recognized that
Husband would likely have to incur expenses to render the marital home habitable and
credited those expenses against the amount of Husband’s income that was available to
pay alimony. Thus, the district court’s findings regarding repairs did not increase
Wife’s alimony award in any way but instead benefitted Husband by recognizing that
necessary repair costs would reduce the funds available for him to pay alimony. See
generally Fish v. Fish, 2010 UT App 292, ¶ 12, 242 P.3d 787 (“In fashioning an alimony
award, the trial court is required to consider the payor spouse’s ability to pay . . . .”).
¶18 Ultimately, it appears that the district court was asked to choose between two
opposing narratives presented by the parties: Husband’s narrative, wherein the parties
jointly decided to live in substandard conditions so that they were financially able to
pursue their mutual hobbies, and Wife’s narrative, wherein Husband controlled the
bulk of the parties’ income and chose to spend it on hunting rather than on maintaining
the marital home in a habitable condition. Clearly, the district court adopted Wife’s
narrative over Husband’s, and having done so, did not abuse its discretion in basing
Wife’s—and Daughter’s—housing needs on a reasonable, habitable residence rather
than the unsuitable housing situation maintained by Husband.7 For this reason, we
decline to disturb the district court’s determination of Wife’s housing expenses.
6
The district court also found that “[Husband] has the skills necessary to bring
the home into a habitable structure.” We agree with Husband that there is little in the
record to support this finding, but we consider the finding irrelevant to the district
court’s determination of Wife’s need.
7
Contrary to the assertion expressed in Judge Orme’s separate opinion, we do not
view the district court’s decision as one based on Husband’s fault. Rather, the district
court’s observation that Husband bore the responsibility for the decline in value of the
marital home is properly seen as a finding that Wife did not cause that condition and
should not have her current housing need reduced because of it. The district court
properly determined Wife’s reasonable need for habitable housing for herself,
Daughter, and the horses and livestock. Whether the marital home was insufficient to
meet that need because of Husband’s neglect or some other reason, such as a flood or
fire, is largely irrelevant to the determination of Wife’s current need.
20110317‐CA 8
II. Feeding Expenses for Daughter’s Animals
¶19 Husband also challenges the district court’s finding that Wife had need of $200
per month for the feeding of Daughter’s horses and livestock. Husband characterizes
these expenses as Daughter’s “hobby” expenses and argues that, by treating them as
part of Wife’s financial need, the district court “converted [Daughter’s] fluctuating
temporary expense into the Wife’s fixed, long‐term need.” The majority opinion of the
court, reflected in Judge McHugh’s separate opinion, is that the district court erred in
allocating the animal expenses as a part of Wife’s financial need because those expenses
were attributable to Daughter. However, in my opinion, the district court’s finding was
within its discretion under the circumstances.
¶20 The majority opinion cites Davis v. Davis, 2011 UT App 311, 263 P.3d 520, for the
proposition that particular expenses attributable to children may not be awarded as
child support in addition to the amount specified by the child support guidelines unless
the district court enters separate findings justifying the departure from the guidelines.
See id. ¶¶ 16–18. However, the district court did not award the animal expenses as child
support but rather considered those expenses as part of Wife’s overall financial need for
purposes of establishing alimony. The question before this court, then, is whether the
district court properly used those expenses in its alimony determination. Whether and
under what circumstances such expenses could be awarded as child support exceeding
the statutory guidelines is, in my opinion,8 irrelevant so long as the expenses can
properly be viewed as part of Wife’s overall financial need for alimony purposes. See
generally Utah Code Ann. § 30‐3‐5(8)(a) (Supp. 2012) (“The court shall consider at least
8
Even if the majority opinion is correct that the animal expenses must be treated
under the rules governing child support, the district court should not be precluded
from entering further findings on this issue on remand. The district court has already
found that, even with the stipulated child support, Wife’s income is insufficient to cover
Daughter’s animal expenses in addition to Wife’s other needs. On remand, Wife should
be entitled to seek additional child support to cover the animal expenses, which the
district court can award upon a specific finding that failing to award such expenses
would be “‘unjust, inappropriate, or not in [Daughter’s] best interest.’” See Davis v.
Davis, 2011 UT App 311, ¶ 17, 263 P.3d 520 (quoting Utah Code Ann. § 78B‐12‐210(3)
(2008)).
20110317‐CA 9
the following factors in determining alimony: (i) the financial condition and needs of
the recipient spouse . . . .”).
¶21 Husband’s argument that the expenses must be treated as child support focuses
on the fact that the horses and livestock in question belong to Daughter, who will reach
the age of majority many years before the expiration of Husband’s alimony obligation.9
However, the totality of the evidence before the district court paints a broader picture.
It appears undisputed that Wife will actually be paying for the animals’ care at least
through the remainder of Daughter’s minority. But it is also clear that the animals, and
particularly the horses, were a part of Wife’s established standard of living regardless of
their actual ownership. Wife testified that she rode horses herself when she could and
that she rode the horses belonging to the parties’ daughters. She also testified that she
had personally owned a horse until it died several weeks before trial. And, as discussed
above, Wife’s housing needs were determined with the understanding that Wife would
be purchasing a “horse property,” further suggesting that Wife was accustomed to a
horse‐owning lifestyle.
¶22 In light of the totality of the evidence, I see no abuse of discretion in the district
court’s treatment of the animal expenses as a part of Wife’s standard of living, at least as
of the time of trial. Wife will be paying for the animals’ care at least through the end of
Daughter’s minority. But even after Daughter reaches the age of majority, Wife will
presumably continue to consider access to horses to be an ongoing part of her
customary lifestyle. Wife owned her own horse until it died shortly before trial, and it
would be completely consistent with her standard of living during the marriage if she
were to purchase her own horse at some point in the future. Further, the district court’s
housing allowance contemplates Wife establishing her new residence on a horse
property.10 All of these factors convince me that the district court acted within its
9
Husband argues that he stipulated at trial that he would pay a portion of
Daughter’s animal expenses in addition to child support but that such payments should
terminate upon Daughter reaching the age of majority, five or six years after trial.
10
Husband’s argument makes no distinction between the horses and the
livestock. I recognize that there is less support in the record for treating the livestock
animals as part of Wife’s lifestyle than there is for the horses. However, Wife did testify
that in the year prior to trial, Daughter had raised three pigs, one of which was
(continued...)
20110317‐CA 10
“broad discretion” in determining that Wife’s financial need should include the animal
expenses.
¶23 Finally, Wife is correct that any future changes in her financial needs can be dealt
with through a motion to modify alimony, if circumstances warrant. See generally Utah
Code Ann. § 30‐3‐5(8)(g)(i) (“The court has continuing jurisdiction to make substantive
changes and new orders regarding alimony based on a substantial material change in
circumstances not foreseeable at the time of the divorce.”). As to the current award, I
see no abuse of discretion regarding the animal expenses in light of evidence that the
horses were a part of Wife’s established standard of living, regardless of their actual
ownership by Daughter.11 I therefore am compelled to write separately from the
majority opinion of the court on this issue, which can be found in Judge McHugh’s
separate opinion.
CONCLUSION
¶24 Husband has not established that the district court abused its broad discretion in
determining Wife’s housing need. See generally Olsen v. Olsen, 2007 UT App 296, ¶ 8,
10
(...continued)
slaughtered rather than sold. This use of Daughter’s animals for family food purposes
suggests that, at least in part, the livestock were more than Daughter’s mere hobby and
contributed to Wife’s overall lifestyle in a way that Wife might choose to continue into
the indefinite future.
11
Even if the expenses in this case were clearly Daughter’s rather than Wife’s, I
am not at all sure that the rule against ordering the payment of extracurricular activity
costs as child support precludes the consideration of such costs as part of determining a
recipient spouse’s overall need for purposes of awarding alimony. See generally Davis,
2011 UT App 311, ¶¶ 16–18 (holding that payment of school fees may not be ordered as
child support without supporting findings). Parents incur many expenses for their
minor children, and an award of child support will often not entirely cover those
expenses. Yet, those expenses remain a part of a recipient spouse’s financial need, at
least during the children’s minority. It may well be appropriate to consider such
expenses as part of a recipient spouse’s overall need for alimony purposes, even though
the recipient spouse is paying them on behalf of a minor child.
20110317‐CA 11
169 P.3d 765 (stating that the district court has “broad latitude” to “make such orders
concerning property distribution and alimony as are equitable”). In reaching its
determination that Wife’s monthly housing expense would be $700 to $710, the district
court properly considered Wife and Daughter’s need for a habitable residence, Wife’s
available housing options, and Husband’s neglect of the marital home and its resulting
decrease in value and habitability. These factors adequately support the district court’s
determination as to Wife’s housing need, and we affirm that determination.
¶25 On Husband’s second issue, the majority opinion of the court is that the district
court erred when it included $200 of expenses for Daughter’s animals in Wife’s overall
monthly need. That majority opinion is found in Judge McHugh’s separate opinion, in
which Judge Orme joins. My own conclusion on this issue, stated in the body of this
opinion, is that the district court acted within its discretion in determining that Wife
was entitled to a $200 monthly expense for animal feed. However, in accordance with
the majority opinion of the court, we reverse the district court on this issue and remand
for further proceedings consistent with the majority opinion.
____________________________________
William A. Thorne Jr., Judge
‐‐‐‐‐
McHUGH, Judge (concurring in part and dissenting in part):
¶26 I concur with part I of Judge Thorne’s decision, but dissent from part II, which
would affirm the inclusion of $200 per month in the alimony award for the cost of
feeding Daughter’s horses and livestock. Because Judge Orme concurs with me, this
decision represents the court’s majority opinion on that issue.
¶27 As a general rule, the expenses related to minor children should be included in
the child support award, not as part of the alimony obligation. See Chambers v.
Chambers, 840 P.2d 841, 843 n.1 (Utah Ct. App. 1992) (“If the child support that the
parties stipulated to is insufficient to cover the children’s expenses, then the court must
award sufficient child support, not increase alimony to include the children’s
expenses.”). Furthermore, a party may be ordered to pay the expenses related to a
20110317‐CA 12
child’s activities, in addition to child support, only to the extent that the payor spouse
voluntarily agrees to do so. See Davis v. Davis, 2011 UT App 311, ¶¶ 16–18, 263 P.3d 520(holding that school fees were “part and parcel of the child support award” and could
not be separately awarded, absent the payor spouse’s assent, without separate findings
justifying a child support award exceeding the guidelines (internal quotation marks
omitted)).12
¶28 There is nothing in the record suggesting that Husband agreed to pay the
expenses related to the care and feeding of Daughter’s horses in addition to the amount
of his monthly child support obligation. Nor is there anything to indicate that the
district court awarded the $200 per month in alimony for any purpose other than the
care and feeding of Daughter’s horses. Under these circumstances, we hold that the
district court exceeded its discretion by including the expenses related to Daughter’s
equestrian activities in calculating the amount of alimony.
____________________________________
Carolyn B. McHugh, Judge
‐‐‐‐‐
ORME, Judge (concurring specially):
¶29 I concur in Judge McHugh’s opinion concerning the treatment of Daughter’s
hobby expenses. I concur in the result reached in section I of Judge Thorne’s opinion
12
Judge Thorne argues that we should affirm the district court’s inclusion of the
costs associated with Daughter’s horses as part of the alimony award because the
district court “considered those expenses as part of Wife’s overall financial need.” See
supra ¶ 20. However, under that approach, any expenses related to the sports, hobbies,
vacations, lessons, or other activities of minor children could be added to an alimony
award, thereby circumventing the limitations discussed in Davis v. Davis, 2011 UT App
311, 263 P.3d 520. See id. ¶¶ 16–18. In addition, by characterizing these expenses as part
of Wife’s financial need, the obligation to pay them may, as in this case, extend well
beyond Daughter’s attainment of majority.
20110317‐CA 13
concerning the handling of Wife’s housing expenses. With respect to the latter, the
resolution seems fair and equitable under all the circumstances. It strikes me as a bit of
a stretch to get there, however, strictly in terms of the standard of living “enjoyed” by
the parties during the marriage. To elevate a lifestyle featuring a $68,000 marital
residence, with a dwelling in disrepair, to one featuring a property worth $140,000
simply because horses roamed the grounds of the martial residence seems hard to
justify.
¶30 Significantly, the district court found that the poor condition of the marital
dwelling was not due to a mutual decision of the parties, but to Husband’s neglect.
Indeed, in concluding that the $68,000 property value was attributable all but
exclusively to the value of the land, the district court determined that Husband “bears
the responsibility for the home’s decline in value.”
¶31 I am not persuaded that a simple “standard of living during the marriage”
analysis justifies treating Wife as having housing expenses attributable to a $140,000
home. But if due regard is given to Husband’s fault in reducing the parties’ standard of
living during the marriage to one that was artificially low, at least as concerns housing,
the trial court’s analysis is sound. I recognize that the trial court did not use the word
“fault” in its analysis, possibly because of the controversy that the concept has
generated in our jurisprudence,13 but it is clear to me that this is exactly what the trial
court had in mind in making its alimony award. And “fault” is an appropriate factor to
consider in awarding alimony. See Utah Code Ann. § 30‐3‐5(8)(b) (2008) (“The court
may consider the fault of the parties in determining alimony.”); Riley v. Riley, 2006 UT
13Compare Mark v. Mark, 2009 UT App 374, ¶¶ 18, 20, 223 P.3d 476 (stating that
“[a]s currently written, Utah Code section 30‐3‐5(8)(b) provides no meaningful
guidance” on how to consider the fault of the parties in determining alimony and
holding that “until the legislature clearly defines fault in the statute, it is inappropriate
to attach any consequence to the consideration of fault when making an alimony
award”); with id. ¶ 25 (Orme, J., dissenting) (“[T]he Legislature’s clear statement that
fault may be considered in alimony determinations represents a policy judgment that
courts should take to heart and endeavor to follow.”) (internal citation omitted). See also
Meyers v. Meyers, 2010 UT App 74, ¶¶11–12 & n.3, 231 P.3d 815 (discussing the
discrepancy between the holdings in Mark and Riley v. Riley, 2006 UT App 214, 138 P.3d
84), aff’d, 2011 UT 65.
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App 214, ¶ 18 & n.2, 138 P.3d 84 (recognizing the Legislature’s enactment of section
5(8)(b) and the resulting authorization for “trial court’s to consider fault in determining
alimony awards”); id. ¶ 23 (holding that “Husband’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”).
____________________________________
Gregory K. Orme, Judge
20110317‐CA 15