Sandusky v. Sandusky

2018 UT App 34THE UTAH COURT OF APPEALS
KYLEE J. SANDUSKY,
Appellee,
v.
GEORGE A. SANDUSKY,
Appellant.
Opinion
No. 20160131-CA
Filed February 23, 2018
Third District Court, Silver Summit Department
The Honorable Kara L. Pettit
No. 114500103
Elizabeth A. Shaffer, Attorney for Appellant
Paul J. Morken and Frank D. Mylar, Attorneys
for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES
GREGORY K. ORME and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 George A. Sandusky and Kylee J. Sandusky had been
married for more than twenty-three years when they entered
into a separation agreement in early 2010 (the Separation
Agreement). After approximately sixteen months during which
the parties complied with the terms of that agreement, Kylee
petitioned for divorce.1 Following a trial, the court entered a
decree of divorce that largely adopted and enforced the terms of
1. “As is our practice in cases where both parties share a last
name, we refer to the parties by their first name with no
disrespect intended by the apparent informality.” See Smith v.
Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
Sandusky v. Sandusky
the Separation Agreement. But the court determined that the
agreement’s term regarding the division of checking and savings
accounts was not specific enough to be enforced and ordered an
equal distribution of the financial accounts between the parties.
In addition, the court awarded alimony to Kylee. George
appeals, arguing that the trial court should have bifurcated the
trial and that the court’s property distribution and alimony
award exceeded its discretion in light of the Separation
Agreement. He further argues that the court should have
granted his motion for a new trial and awarded him attorney
fees. We affirm.
I. Motion to Bifurcate
¶2 George first contends that the trial court abused its
discretion in refusing to bifurcate the trial. In particular, he
asserts that the issue of “the validity of the Separation
Agreement was clearly separable” and should have been tried
first and apart from the issues regarding “the asset
determination and distribution of marital and separate
property.”
¶3 Rule 42(b) of the Utah Rules of Civil Procedure allows a
court, “in furtherance of convenience or to avoid prejudice,” to
“order a separate trial of any claim . . . or of any separate issue.”
Because this rule “gives the trial court considerable discretion to
administer the business of its docket and determine how a trial
should be conducted,” this court “will not disturb the trial
court’s bifurcation order unless the trial court abused its
discretion.” Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1244
(Utah 1998) (citation and internal quotation marks omitted);
accord Tobler v. Tobler, 2014 UT App 239, ¶ 11, 337 P.3d 296.
Generally, a trial court abuses its discretion if its decision
“exceeds the limits of reasonability.” Shinkoskey v. Shinkoskey,
2001 UT App 44, ¶ 15, 19 P.3d 1005 (citation and internal
quotation marks omitted).
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¶4 George moved for bifurcation before trial, asking the
court to “bifurcate proceedings related to the validity and
enforceability” of the Separation Agreement and requesting that
all other issues, including alimony and property distribution, be
reserved for trial. In support, George asserted that “[o]nce the
issue of the validity of the [Separation] Agreement is decided,
there is a greater likelihood the other issues . . . would be able to
be mediated without the need for litigation” and that therefore
bifurcation “would serve both the interests of convenience and
judicial economy and impose no prejudice to either party.”
Kylee opposed bifurcation, arguing that all the issues in the case,
including the validity of the Separation Agreement, were
“completely intertwined.” She asserted that “[b]ifurcation would
not help” the parties mediate their dispute and that, instead of
avoiding prejudice, bifurcation “would be highly inconvenient
and prejudicial.” The trial court denied George’s motion.
¶5 On appeal, George has not shown that the trial court’s
decision fell outside the bounds of its discretion. In the
arguments before the trial court, George and Kylee sharply
disagreed both about whether the issue of the Separation
Agreement’s validity was “a separate issue” and whether
bifurcation would be convenient and avoid prejudice. See Utah
R. Civ. P. 42(b). Moreover, George’s most significant reason for
bifurcation was improving the odds of settlement, but Kylee did
not share this belief. Under these circumstances, we cannot say
that the trial court exceeded its considerable discretion in
weighing these competing viewpoints and choosing not to
bifurcate the proceedings.2
2. Even assuming George could demonstrate that the trial court
abused its discretion in not bifurcating the proceedings, his
challenge to that decision would nevertheless fail because he has
not shown that he was prejudiced as a result. George’s broad
(continued…)
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II. Property Distribution and Alimony
¶6 George raises a number of arguments on appeal
regarding property distribution and alimony. He asserts that
“the decision of the trial court does not conform with the
Separation Agreement, prior Utah precedent or any notion of
equity.”
¶7 “Generally, district courts have considerable discretion
concerning property distribution in a divorce proceeding and
their determinations enjoy a presumption of validity.” Dahl v.
Dahl, 2015 UT 79, ¶ 119 (citation and internal quotation marks
omitted). We therefore will uphold the trial court’s decision on
appeal “unless a clear and prejudicial abuse of discretion is
demonstrated.” Id. (citation and internal quotation marks
omitted). We similarly “review a district court’s alimony
determination for an abuse of discretion” and will not disturb its
alimony ruling “as long as the court exercises its discretion
within the bounds and under the standards [set by Utah
appellate courts] and has supported its decision with adequate
findings and conclusions.” Id. ¶ 84 (citation and internal
quotation marks omitted). In reviewing the trial court’s
decisions, “we will not set aside findings of fact, whether based
on oral or documentary evidence, unless they are clearly
erroneous, and we give due regard to the district court’s
superior position from which to judge the credibility of
witnesses.” See id. ¶ 121.
(…continued)
assertions of prejudice are unsupported, and he fails to identify
with any measure of precision how bifurcation of the
proceedings would have led to a different result. See Utah R. Civ.
P. 61 (“The court at every stage of the proceeding must disregard
any error or defect in the proceeding which does not affect the
substantial rights of the parties.”).
20160131-CA 4 2018 UT App 34Sandusky v. Sandusky
¶8 To provide context for George’s arguments, we begin
with a brief summary of the terms of the Separation Agreement
and the trial court’s findings regarding its enforceability. We
then turn to George’s specific contentions regarding property
division and alimony. Last, we consider his contention that the
trial court’s divorce decree produced an inequitable result.
A. The Separation Agreement
¶9 George and Kylee executed the Separation Agreement in
February 2010 when they were living apart and approximately
sixteen months before Kylee filed for divorce. The parties
entered the Separation Agreement “to confirm their separation”
and to settle “their property rights and other rights,
responsibilities, and obligations growing out of their marital
relationship.” The parties agreed that division of marital
property as set forth in the Separation Agreement’s provisions
was “fair, reasonable and equitable,” and they agreed that the
Separation Agreement would “be binding on the parties.” The
parties also agreed that the Separation Agreement would be
incorporated into any court order or divorce decree.
¶10 The trial court determined that the Separation Agreement
was a valid and binding contract—a determination neither party
contests on appeal. Because the Separation Agreement was
enforceable, the trial court gave it “great weight,” but the court
also “assess[ed] whether its terms [were] fair and equitable.” See
Pearson v. Pearson, 561 P.2d 1080, 1082 (Utah 1977) (“The court
need not necessarily abide by the terms of the [litigants’]
stipulations, and, although such should be respected and given
great weight, the court is not duty bound to carry over the terms
thereof.” (footnote omitted)); see also Reese v. Reese, 1999 UT 75,
¶ 25, 984 P.2d 987 (“[T]he general principle derived from our
case law is that spouses . . . may make binding contracts with
each other and arrange their affairs as they see fit, insofar as the
negotiations are conducted in good faith . . . and do not
20160131-CA 5 2018 UT App 34Sandusky v. Sandusky
unreasonably constrain the court’s equitable and statutory
duties.”). In so doing, the trial court interpreted the terms of the
Separation Agreement, identified certain of the parties’ assets as
either marital or separate property, and entered findings
supporting its division of property and its alimony award.
B. Property Division
¶11 George now contends that the property “distribution
made by the Court was not consistent with the Separation
Agreement and was inequitable.” Although he acknowledges
that, in his words, “a property settlement agreement is not
binding upon the trial court in a divorce action,” he asserts that
“the property division agreed to by the parties should not have
been disturbed.”
¶12 “[T]he 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.”
Dahl v. Dahl, 2015 UT 79, ¶ 25 (citation and internal quotation
marks omitted); see also Utah Code Ann. § 30-3-5(1) (LexisNexis
Supp. 2017) (permitting courts to issue “equitable orders relating
to” property in divorce cases). “Utah law presumes that
property acquired during a marriage is marital property subject
to equitable distribution.” Dahl, 2015 UT 79, ¶ 26. “[M]arital
property is ordinarily divided equally between the divorcing
spouses . . . .” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 13,
176 P.3d 476 (citation and internal quotation marks omitted). In
contrast, separate property is generally composed of “premarital
property, gifts, and inheritances,” and ordinarily the “spouse
bringing such . . . property into the marriage may retain it in the
event of a divorce.” Dahl, 2015 UT 79, ¶ 143 (omission in
original) (citation and internal quotation marks omitted). Yet
separate property “is not totally beyond a court’s reach” and
may be included as part of the marital estate in three
circumstances: “when separate property has been commingled;
20160131-CA 6 2018 UT App 34Sandusky v. Sandusky
when the other spouse has augmented, maintained, or protected
the separate property; and in extraordinary situations when
equity so demands.” Lindsey v. Lindsey, 2017 UT App 38, ¶ 33,
392 P.3d 968 (citation and internal quotation marks omitted).
Having set forth these guiding principles for the distribution of
property upon divorce, we now address George’s specific
contentions regarding the trial court’s treatment of the financial
accounts, certain real property, and loans.
1. The Financial Accounts
¶13 George challenges the trial court’s distribution of the
couple’s financial accounts, attacking the court’s interpretation
of the Separation Agreement and asserting that the court “erred
in determining that the bank accounts were not sufficiently
identified to justify . . . deeming them marital property.” In
George’s view, the Separation Agreement “was not sufficiently
ambiguous as to warrant the court’s re-disposition of property
already agreed-upon by the parties.” In the alternative, he
contends that even if the Separation Agreement’s provision
regarding the checking and savings accounts was unenforceable,
the trial court nevertheless should have treated one particular
checking account (the #400 account) as his separate property and
should have awarded that account solely to him.
¶14 The Separation Agreement has a section identifying and
assigning separate property to George and Kylee. It states that
Kylee is entitled to the following separate property: “All home
furnishings, computers, tvs, jewelry, and Honda 2007 Civic,
checking and savings accounts, and 401K.” It states that George
is entitled to the following separate property: “Honda Ridgeline
2007 truck, checking and savings accounts and retirement
pension.” The Separation Agreement does not identify which of
the parties’ several checking and savings accounts each spouse
would receive. At trial, George took the position that the parties’
intent was for the majority of the accounts to be considered his
20160131-CA 7 2018 UT App 34Sandusky v. Sandusky
separate property and that their intent was evident in the plain
language of the Separation Agreement. Kylee’s position, on the
other hand, was that the checking and savings account phrase
was ambiguous and that she was fraudulently induced into
signing the Separation Agreement as a whole.3
¶15 The trial court ultimately ordered the parties to split their
checking and savings accounts equally. The court reasoned that
because the parties “had numerous accounts many of which
were in both of their names,” the Separation Agreement’s
provision regarding the checking and savings accounts was not
specific enough to be enforced. The court questioned whether
the parties had reached a meeting of the minds concerning how
to divide the financial accounts and also stated that the “lack of
identification of any particular accounts renders this provision
ambiguous.” See generally Lyngle v. Lyngle, 831 P.2d 1027, 1029
(Utah Ct. App. 1992) (“A document is ambiguous if it is subject
to two plausible constructions, or its terms are so incomplete
they create confusion as to its meaning.” (citation and internal
quotation marks omitted)).
¶16 Based on the evidence presented, the court also found
that the financial accounts were “acquired during the marriage
and contain commingled funds”; that no accounts were
“obviously the separate property of either [Kylee] or [George]”;
and that “all of the parties’ checking and savings accounts are
marital property.” The trial court thus concluded,
In light of the parties’ vastly opposed positions on
their intent, and the fact that the Court has
determined that the financial accounts are all
marital property, the Court determines the most
3. The trial court rejected Kylee’s attempt to void the Separation
Agreement on the ground of fraudulent inducement.
20160131-CA 8 2018 UT App 34Sandusky v. Sandusky
fair and equitable approach, as well as the
presumption under Utah law, is to split all of the
financial accounts equally between the parties.
¶17 George has not demonstrated that the trial court erred in
so concluding. To adequately brief an issue, an appellant’s
argument must contain his “contentions and reasons . . . with
respect to the issues presented, . . . with citations to the
authorities, statutes, and parts of the record relied on.” Utah R.
App. P. 24(a)(9) (2016).4 An argument is inadequately briefed
“when the overall analysis of the issue is so lacking as to shift the
burden of research and argument to the reviewing court.” CORA
USA LLC v. Quick Change Artist LLC, 2017 UT App 66, ¶ 5, 397
P.3d 759 (citation and internal quotation marks omitted). Here,
George does not present a reasoned argument explaining why
the two instances of the phrase “checking and savings accounts”
were unambiguous or definite enough to be enforced, and he
offers no interpretation of the provision to support his assertion
that it clearly identifies certain accounts as his. Instead, without
offering an alternative interpretation of the provision, he simply
contends that the parties understood what it meant and that he
“presented undisputed evidence as to the meaning.” But the
court rejected these arguments when it concluded that the
parties had “vastly different positions as to their intent with
respect to the financial accounts” and when it declined to adopt
George’s proposal that the financial accounts should be deemed
his separate property.
4. Since the time George filed his brief, rule 24 of the Utah Rules
of Appellate Procedure has been amended and renumbered. The
rule now provides that an appellant’s argument “must explain,
with reasoned analysis supported by citations to legal authority
and the record, why the party should prevail on appeal.” Utah
R. App. P. 24(a)(8).
20160131-CA 9 2018 UT App 34Sandusky v. Sandusky
¶18 As for George’s alternative argument, he asserts that the
#400 account was his separate property because he “acquired [it]
before the marriage and maintained [it] separately from any
commingled assets.” The trial court did not accept this
argument, instead concluding that the #400 account, along with
all of the other financial accounts, was marital property. The
court reasoned that any premarital property that George brought
into the marriage in the #400 account was “commingled” and
that he “intended to merge, commingle, gift and transmute any
separate property into marital property.” See generally Dunn v.
Dunn, 802 P.2d 1314, 1321 (Utah Ct. App. 1990) (indicating that a
spouse’s separate premarital property may be included in the
marital estate if it has “[lost] its separate distinction where the
parties have inextricably commingled it into the marital estate,
or where one spouse has contributed all or part of the property
to the marital estate”). The trial court also reasoned that the
parties expended marital funds on real estate and hard money
loan ventures related to the #400 account and that Kylee’s efforts
during the marriage “assisted to augment, maintain or protect
the property that perhaps initially was obtained through the
assets [George] brought with him to the marriage.” See generally
Lindsey v. Lindsey, 2017 UT App 38, ¶ 35, 392 P.3d 968(explaining that “a spouse’s separate property may be subject to
equitable distribution when the other spouse has by his or her
efforts or expense contributed to the enhancement, maintenance,
or protection of that property, thereby acquiring an equitable
interest in it” (citation and internal quotation marks omitted)).
¶19 George has not shown that the trial court exceeded its
discretion in subjecting the #400 account to equitable division.
He conceded at oral argument that some evidence supported the
trial court’s findings, and he has not engaged with or shown
clear error in the findings on this issue. See Kimball v. Kimball,
2009 UT App 233, ¶ 14, 217 P.3d 733 (“A trial court’s factual
determinations are clearly erroneous only if they are in conflict
with the clear weight of the evidence, or if this court has a
20160131-CA 10 2018 UT App 34Sandusky v. Sandusky
definite and firm conviction that a mistake has been made.”
(citation and internal quotation marks omitted)). Moreover,
George has not provided legal authority and reasoned analysis
that might persuade this court to rule in his favor. See supra
¶ 17.5
2. Real Property
¶20 George next asserts that ten lots of real property (the Lots)
were his separate property that he should retain. The Separation
Agreement identifies the Lots as real property that George
owned “solely in his own name,” and provides that the Lots
were to “remain separate” property. At some point during the
proceedings, the Lots were sold.
¶21 In fact, the trial court ultimately awarded George the Lots
as his separate property, albeit in the form of the sale proceeds.
As George recognizes, the trial court’s post-trial order clarified
and ordered that the proceeds from the sale of the Lots were
awarded to George as his separate property per the terms of the
Separation Agreement. We therefore fail to see error or discern
how George was aggrieved by the trial court’s decision in this
regard.
3. Loans
¶22 George also contends that the trial court “improperly
ruled that $305,000 was part of the marital estate as ‘loans’” and
erred in requiring him to pay Kylee “the amount equal to one-
half” of these loans. He further asserts that these loans were
“already repaid,” implying that the divided financial accounts
contained the amounts representing the allegedly repaid loans.
5. George also asserts that if the financial accounts were marital
property, then “those funds were not divided equitably.” We
address this argument in Part II.D.
20160131-CA 11 2018 UT App 34Sandusky v. Sandusky
¶23 The trial court found that at the time of trial the parties
possessed some assets that they had acquired after executing the
Separation Agreement. These assets included $305,000 in loans
that the parties made to three individuals using funds from their
financial accounts. Because the loans were held at the time of
trial and were not accounted for by the Separation Agreement,
the court determined that “the most fair and equitable
distribution, as well as the presumption under Utah law, . . . is to
split them equally.”
¶24 George filed a post-trial motion, asserting that the loans
had been made from his separate property and that the loans
had been repaid. The trial court also allowed George to file
supplemental briefing for the express purpose of providing him
an opportunity to cite specific evidence admitted at trial in
support of his motion. Ultimately, the trial court denied the
motion. The court concluded that “the evidence at trial did not
demonstrate that [the] loans were made from [George’s] separate
property”; rather, “the loans were made from funds that were
commingled and were not segregated.” The court also
concluded that no evidence showed that the three indebted
individuals had repaid the loans. The court noted that, although
George cited his own deposition, the deposition was not offered
or received as a trial exhibit and that the portion of the
deposition published during George’s testimony did not
establish that the loans were repaid.
¶25 George’s attack on the trial court’s treatment of the loans
is, at heart, a challenge to the factual findings. To demonstrate
clear error in the trial court’s factual findings, the appellant must
“overcome[e] the healthy dose of deference owed to factual
findings” by “identify[ing] and deal[ing] with [the] supportive
evidence” and establishing a legal problem in that evidence.
State v. Nielsen, 2014 UT 10, ¶¶ 40–41, 326 P.3d 645; accord Taft v.
Taft, 2016 UT App 135, ¶ 19, 379 P.3d 890. A party challenging
factual findings cannot persuasively carry his burden in this
20160131-CA 12 2018 UT App 34Sandusky v. Sandusky
respect “by simply listing or rehashing the evidence and
arguments [he] presented during trial” or “by merely pointing to
evidence that might have supported findings more favorable to
[him]; rather, [he] must identify flaws in the evidence relied on
by the trial court that rendered the trial court’s reliance on it, and
the findings resulting from it, clearly erroneous.” Taft, 2016 UT
App 135, ¶ 43.
¶26 Just as he did before the trial court and citing his own
deposition and trial testimony, George asserts that the loans
were made from separate funds and that the loans were repaid.
But as the trial court noted, his deposition was not admitted into
evidence, and the cited portions of his trial testimony do not
support his assertion that the particular loans at issue were made
from his separate property or that they were repaid. Moreover,
George does not address the trial court’s rationale for rejecting
these same assertions made in his post-trial motion. Cf. Duchesne
Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257
P.3d 441 (explaining that an appellant must address the basis for
the district court’s decision to persuade the reviewing court that
the district court has erred). As a result, George has not carried
his burden of persuasion on appeal to show error in the trial
court’s decision regarding the loans.6
6. In connection with his argument about the loans, George
briefly suggests that the trial court failed to provide adequate
factual findings. But to preserve this issue for appeal, George
had to object in the trial court “to the adequacy of the detail of”
the court’s factual findings. In re K.F., 2009 UT 4, ¶¶ 60–64, 201
P.3d 985. He has not shown where in the record he alerted the
trial court to the need to make additional findings. See Utah R.
App. P. 24(a)(5)(A) (2016). Accordingly, George’s challenge to
the adequacy of the findings of fact is not preserved, and we do
not further address it.
20160131-CA 13 2018 UT App 34Sandusky v. Sandusky
C. Alimony
¶27 Next, George challenges the trial court’s alimony award,
contending that the court’s ruling “did not follow the parties’
agreement with regard to the monthly payments and/or lump
sum award” and resulted in “an inequitable distribution of the
parties’ assets.” George contends that, contrary to the parties’
intent, the court “substituted its own contractual terms that the
$400,000 lump sum payment was ‘alimony’ awarded to [Kylee]
on top of the Court’s distribution of the estate.”
¶28 Under the terms of the Separation Agreement, George
agreed to pay Kylee $2,000 per month as alimony beginning in
March 2010. The Separation Agreement specifically states that
the alimony provisions are “independent of” the property
division provisions: “The provisions for the support,
maintenance and alimony of Kylee are independent of any
division or agreement for the division of property between the
parties, and shall not for any purpose be deemed to be a part of
or merged in or integrated with the property settlement of the
parties.” Additionally, the parties signed an addendum, which
provides, “At any time either one of the parties may terminate
the monthly alimony payments of $2000 with a lump sum cash
payment of $400,000.”
¶29 The trial court concluded that the parties’ agreement
regarding alimony was fair and equitable. The court specifically
concluded that George was obligated to pay alimony of $2,000
per month to Kylee for up to twenty-four years,7 unless and until
7. The Separation Agreement does not provide a date on which
alimony payments will end. Because Utah law does not permit
alimony to be awarded for a duration longer than the marriage
itself, the trial court ordered that George was obligated to pay
alimony from March 2010 (the date the Separation Agreement
(continued…)
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one of the parties elects the lump sum payment as provided for
in the addendum to the Separation Agreement.8 The court also
stated that no evidence was presented that either party had
made such an election. The court’s findings indicate that George
testified that his understanding was that Kylee’s share of the
property division was $400,000 and that, under the Separation
Agreement, George was to pay Kylee that share as alimony at a
(…continued)
went into effect) for “up to 24 years” (the length of the parties’
marriage). See Utah Code Ann. § 30-3-5(8)(j) (LexisNexis Supp.
2017) (“Alimony may not be ordered for a duration longer than
the number of years that the marriage existed unless, at any time
prior to termination of alimony, the court finds extenuating
circumstances that justify the payment of alimony for a longer
period of time.”).
8. The trial court found that although George paid $2,000 per
month in alimony from March 2010 through June 2011, he did
not pay alimony from July 2011 through July 2015. Accordingly,
the court found that George owed Kylee $96,000 in past due
alimony. George asserts on appeal that the $96,000 calculation is
in error, relying on his assertion that Kylee “withdrew $90,000
from the bank account in June 2011” when she filed for divorce
and that she “withdrew this sum as prepaid ‘alimony’—or a
portion of her lump sum payment due to her under the
separation agreement.” George’s reference to the $90,000
withdrawal appears to pertain to the trial court’s finding that
Kylee had withdrawn $90,000 from a marital account and that
George was entitled to half of that amount as his share of that
marital property. Given that the trial court accounted for Kylee’s
$90,000 withdrawal by deducting $45,000 from the final sum of
marital assets to be distributed to Kylee, George has not shown
error in the trial court’s $96,000 calculation of the past due
alimony.
20160131-CA 15 2018 UT App 34Sandusky v. Sandusky
rate of $2,000 per month or a lump sum payment option of
$400,000. The court found that George’s testimony on this point
was “in direct conflict with the plain language” of the Separation
Agreement.
¶30 On appeal, George’s challenge to the alimony award is
essentially a reassertion of his view that, per the Separation
Agreement, Kylee’s share of the property division was $400,000
and that he was to pay that share to Kylee as alimony at a rate of
$2,000 per month or a lump sum payment option of $400,000. In
so arguing, George maintains that the $2,000 monthly payment
or the alternative lump sum $400,000 payment “represented
[Kylee’s] property distribution.”
¶31 But the trial court’s alimony award was consistent with
the Separation Agreement’s plain language, and George’s
argument to the contrary is not. Article 4 of that agreement
expressly provides that its “provisions for the support,
maintenance and alimony of Kylee are independent of any division
or agreement for the division of property.” (Emphasis added.)
Because the $2,000 per month alimony payments and the
alternative $400,000 lump sum under the Separation Agreement
are “independent of” the property division and therefore cannot
be “part of” the parties’ property settlement, George’s alimony
payment and the alternative lump sum payment cannot
represent Kylee’s share of the property distribution.
¶32 George also takes issue with the trial court’s analysis
under Utah Code section 30-3-5(8), which establishes the factors
that a court shall consider in determining alimony. The trial
court decided that even though the parties had agreed upon
alimony and had not addressed the requisite statutory factors, it
would analyze those factors for alimony “to ensure the parties’
agreed upon award [was] fair and equitable.” The court then
analyzed, among other things, the financial needs and conditions
of the recipient spouse, the recipient spouse’s earning capacity,
20160131-CA 16 2018 UT App 34Sandusky v. Sandusky
and the ability of the payor spouse to provide support. See Utah
Code Ann. § 30-3-5(8)(a) (LexisNexis Supp. 2017) (laying out the
statutory factors for an alimony determination).
¶33 George attacks the trial court’s analysis regarding Kylee’s
needs and his ability to provide support, asserting that the
evidence did not support its analysis of these two factors. But to
successfully challenge a trial court’s factual findings on appeal,
the appellant must show that the findings are “in conflict with
the clear weight of the evidence” or convince this court that a
mistake has been made. See Kimball v. Kimball, 2009 UT App 233,
¶ 14, 217 P.3d 733 (citation and internal quotation marks
omitted). George has not carried his burden in this regard. He
does not address the trial court’s specific alimony findings or
attempt to deal with the evidence in support of them. Because
George asks us to reweigh the evidence and fails to demonstrate
a legal problem in the evidence, he has not shown error in the
trial court’s findings regarding the alimony factors.9 See Taft v.
Taft, 2016 UT App 135, ¶¶ 19, 43, 379 P.3d 890.
D. The Equities of the Divorce Decree
¶34 George further contends that the trial court’s order to
equally divide all of the couple’s financial accounts plus the
alimony award resulted in an inequitable divorce decree.
According to George, the decree awarded Kylee three-quarters
of the total marital estate.
¶35 George has not shown that the trial court exceeded its
discretion in dividing the assets and awarding alimony. As
9. To the extent George suggests that the property division
should have been given additional weight in the court’s analysis
of the alimony factors, he has not developed a reasoned and
supported analysis, and we do not consider the argument
further. See supra ¶ 17.
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previously stated, trial courts have considerable discretion over
property division and alimony, and their primary objective is to
accomplish a just, fair, and equitable result between divorcing
spouses. See Dahl v. Dahl, 2015 UT 79, ¶¶ 25, 119. Here, the trial
court supported its conclusion that the divorce decree was
equitable by explaining that, under its terms, the parties would
retain their individual retirement benefits, they would each
receive about half of the personal property, and they would
divide the financial accounts equally. In addition, the court
explained that while George would retain the proceeds from the
sale of the Lots as his separate property, Kylee would receive
$2,000 per month in alimony or, alternatively, a $400,000 lump
sum payment. In challenging the equitable considerations of the
divorce decree, George largely overlooks the fact that he
retained the sale proceeds from the Lots and his pension. And
although George disagrees with the result reached by the trial
court and with what he views as deviations from the Separation
Agreement, he has not persuaded us that the trial court exceeded
its discretion.
III. Motion for a New Trial
¶36 Next, George contends that the trial court committed legal
error and improperly denied him a new trial. He cites rule
59(a)(1) of the Utah Rules of Civil Procedure, which states that a
new trial may be granted for any “irregularity in the proceedings
of the court, jury or opposing party, or any order of the court, or
abuse of discretion by which a party was prevented from having
a fair trial.” He also implicitly relies on rule 59(a)(3), which
allows for a new trial due to “accident or surprise that ordinary
prudence could not have guarded against.” Utah R. Civ. P.
59(a)(3).
¶37 George has not preserved these issues for appeal. “An
issue is preserved for appeal only if it was ‘presented to the trial
court in such a way that the trial court [had] an opportunity to
20160131-CA 18 2018 UT App 34Sandusky v. Sandusky
rule on [it].’” Wohnoutka v. Kelley, 2014 UT App 154, ¶ 4, 330 P.3d
762 (alterations in original) (quoting 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801). “Issues that are not raised at
trial are usually deemed waived.” 438 Main St., 2004 UT 72, ¶ 51.
Here, George filed a post-trial motion expressly under rule
59(a)(5), (6), and (7), and rule 60(b)(1) and (6). But because the
motion did not state any ground for relief under rule 59(a)(1)
and (3), George did not give the trial court an opportunity to rule
on the issues he now raises on appeal. As a result, he has waived
his argument that the trial court erred in denying his motion for
a new trial.10 See Meyer ex rel. Meyer v. Bartholomew, 690 P.2d 558,
559 (Utah 1984) (per curiam) (rejecting an argument under rule
59(a)(3), where the appellant had filed a post-trial motion under
a different subsection of rule 59(a), and where the rule 59(a)(3)
argument “was never brought to the attention of the trial court”
and “was asserted for the first time on appeal”).
IV. Attorney Fees
¶38 Both parties request an award of attorney fees. George
asks for his fees incurred in the trial court, and Kylee asks for her
fees incurred in defending this appeal.
10. In any event, George offers only conclusory statements that
“the interests of justice are served by a fair adjudication on
accurate and correct calculations” and that the trial court
“should be instructed to adhere” to the Separation Agreement.
But he does not offer reasoned analysis connecting these
statements to rule 59, nor does he further explain how or why he
should prevail on these issues. See Utah R. App. P. 24(a)(9) (2016)
(setting out an appellant’s briefing obligation). As a result,
George’s challenge to the denial of his motion for a new trial also
fails because he has not adequately briefed it.
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A. George’s Request for Attorney Fees in the Trial Court
¶39 George contends that the trial court abused its discretion
by not awarding attorney fees to him. He argues that such an
award was justified “[b]ased on the actions of [Kylee]” and the
fact that the trial court rejected Kylee’s attempt to void the
Separation Agreement.
¶40 The trial court declined to award attorney fees to either
party and instead ordered each party to bear his or her own fees.
The court determined that both parties were able to bear their
own fees based upon their financial condition and the
distribution of marital property. Accordingly, the trial court
determined that an award of fees was not warranted under Utah
Code section 30-3-3 or rule 102 of the Utah Rules of Civil
Procedure.
¶41 “In Utah, attorney fees are awardable only if authorized
by statute or by contract.” Dahl v. Dahl, 2015 UT 79, ¶ 168
(citation and internal quotation marks omitted). Utah Code
section 30-3-3(1) permits a court to award attorney fees and costs
to a party in a divorce proceeding “to enable the [receiving]
party to prosecute or defend the action.” Utah Code Ann. § 30-3-
3(1) (LexisNexis 2013); accord Utah R. Civ. P. 102(a). “Such an
award must be based on evidence of the receiving spouse’s
financial need, the payor spouse’s ability to pay, and the
reasonableness of the requested fees.” Dahl, 2015 UT 79, ¶ 168
(footnote, citation, and internal quotation marks omitted); see also
Utah R. Civ. P. 102(b) (providing that the court may grant a
motion filed pursuant to Utah Code section 30-3-3(1) if the court
finds that “the moving party lacks the financial resources to pay
the costs and fees,” “the non-moving party has the financial
resources to pay the costs and fees,” “the costs and fees are
necessary for the proper prosecution or defense of the action,”
and “the amount of the costs and fees are reasonable”). The
decision whether to award attorney fees pursuant to Utah Code
20160131-CA 20 2018 UT App 34Sandusky v. Sandusky
section 30-3-3(1) “rests in the sound discretion of the district
court,” and we therefore “review the district court’s award or
denial of fees for abuse of discretion.” Dahl, 2015 UT 79, ¶ 168.
¶42 George has not established that the trial court exceeded its
discretion in declining to award attorney fees to him. George’s
argument for fees does not address the application of the
statutory standard for awarding fees in this context. Instead,
George relies on the fact that Kylee unsuccessfully argued to
invalidate the Separation Agreement, and he relies on other
unspecified “actions of [Kylee].”11 This argument falls short,
however, because it does not show that George should have
been awarded fees “to enable [him] to prosecute or defend the
action,” see Utah Code Ann. § 30-3-3(1), or show evidence of his
financial need, Kylee’s ability to pay, and the reasonableness of
the requested fees, see Dahl, 2015 UT 79, ¶ 168. Accordingly, we
cannot say that the trial court exceeded its discretion in ordering
both parties to bear their own attorney fees.12
11. Although George claims entitlement to fees based on Kylee’s
failed arguments and actions, he does not claim that her
positions were frivolous or asserted in bad faith, or that attorney
fees should have been awarded on such a basis. See generally
Utah Code Ann. § 78B-5-825(1) (LexisNexis 2012) (allowing the
trial court in civil actions to award attorney fees to a prevailing
party “if the court determines that the action or defense to the
action was without merit and not brought or asserted in good
faith”).
12. In rejecting George’s request for attorney fees, the court also
determined that both parties prevailed in part. Although
George’s briefing alludes to this finding, that finding is not
relevant to the fees analysis in this case, because this is an action
to establish, not to enforce, an order dividing property. See
(continued…)
20160131-CA 21 2018 UT App 34Sandusky v. Sandusky
B. Kylee’s Request for Attorney Fees on Appeal
¶43 Kylee asks this court to award her attorney fees incurred
on appeal pursuant to rule 33 of the Utah Rules of Appellate
Procedure. She asserts that such an award is warranted because
“George’s appellate brief is frivolous”—a position based on her
assertions that George “failed to preserve issues, he did not
marshal the evidence, and he invited error.”
¶44 Rule 33 provides that if an appellate court determines that
an appeal “is either frivolous or for delay, it shall award just
damages, which may include single or double costs, as defined
in Rule 34, and/or reasonable attorney fees, to the prevailing
party.” Utah R. App. P. 33(a). Our supreme court has instructed
that “parties seeking attorney fees under rule 33 face a high bar”
and that the sanction for bringing a frivolous appeal is only
applied in “egregious cases, lest the threat of such sanctions
should chill litigants’ rights to appeal lower court decisions.”
Porenta v. Porenta, 2017 UT 78, ¶ 51 (citation and internal
quotation marks omitted). Although George’s arguments are
ultimately unavailing, we do not agree that his appeal merits
such a sanction and therefore decline to award Kylee her fees on
appeal.
(…continued)
Goggin v. Goggin, 2013 UT 16, ¶ 32 n.15, 299 P.3d 1079 (stating
that, in an action to enforce an order of division of property,
section 30-3-3(2) “permits a court to award fees ‘upon
determining that the party substantially prevailed upon the
claim or defense’” (quoting Utah Code section 30-3-3(2)));
Robinson v. Robinson, 2016 UT App 32, ¶ 45, 368 P.3d 147(explaining that the requirements for an award of fees incurred
in establishing court orders differ from those for an award of fees
incurred in enforcing court orders).
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CONCLUSION
¶45 In summary, George has failed to show that the trial court
exceeded its discretion in refusing to bifurcate the trial. George
has also failed to show that the trial court’s property distribution
was inequitable or that the trial court otherwise exceeded its
discretion in dividing property and awarding alimony. Finally,
George failed to preserve his claim that the court erred in
denying his motion for a new trial, and he has failed to show
error in the trial court’s denial of his request for attorney fees.
Accordingly, we affirm.
20160131-CA 23 2018 UT App 34