Fox v. Fox

2022 UT App 88THE UTAH COURT OF APPEALS
DIANN SHERI FOX,
Appellant,
v.
BENJAMIN DAVIS FOX,
Appellee.
Opinion
No. 20200949-CA
Filed July 14, 2022
Fifth District Court, St. George Department
The Honorable Matthew L. Bell
No. 184500543
Lincoln Harris and Kari N. Dickinson,
Attorneys for Appellant
N. Adam Caldwell and Chantelle M. Petersen,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
GREGORY K. ORME and JUSTICE DIANA HAGEN concurred. 1
HARRIS, Judge:
¶1 DiAnn Sheri Fox appeals several aspects of a
comprehensive set of rulings issued by the trial court following a
two-day divorce trial, including various findings relating to the
court’s alimony award, its division of marital debts, and its
determination that her ex-husband, Benjamin Davis Fox, was not
1. Justice Diana Hagen began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3‑108(4).
Fox v. Fox
voluntarily underemployed. For the reasons discussed below, we
affirm the court’s orders.
BACKGROUND
¶2 DiAnn and Ben 2 were married in 1997, while Ben was in
college and about to start medical school. After completing his
training, Ben became a successful neurosurgeon with his practice
centered in St. George, Utah. In the marriage’s final years, Ben was
making more than $1 million per year, with his monthly pay
sometimes as high as $110,000. Ben and DiAnn have six children
together, four of whom were minors at the time of trial.
¶3 In keeping with Ben’s impressive income, the parties lived
a lavish lifestyle during the marriage. To support that lifestyle,
Ben spent a significant amount of time at work—as much as 80 to
100 hours per week. And even when he was not working, Ben was
often “on call,” meaning that he had to stay within fifteen minutes
of the hospital in case of a medical emergency. Ben took more “on
call” shifts than any other physician in his practice. Part of the
reason Ben worked such a taxing schedule—even for a
neurosurgeon—was because he was qualified as both a
neurosurgeon and as a neurointerventionalist, and his services
were often in demand. Ben testified that, as a result, he was
becoming burnt out and “physically and emotionally exhausted,”
and that his work schedule was not sustainable. Due to his
schedule, Ben spent comparatively little time with the children,
leaving DiAnn largely responsible for their day-to-day care.
¶4 DiAnn has a bachelor’s degree in elementary education
and worked full-time as a teacher before the couple’s children
2. Because the parties share the same surname, we follow our
usual practice of referring to them by their first names, with no
disrespect intended by the apparent informality.
20200949-CA 2 2022 UT App 88Fox v. Fox
were born. While Ben was still in medical school, however, Ben
and DiAnn decided that DiAnn would not generally work outside
the home but instead would care for their children full-time. At
the time of trial, DiAnn was working part-time for the local school
district, earning ten dollars per hour.
¶5 In 2018, DiAnn filed for divorce. As part of her petition,
DiAnn sought primary physical custody of the children, child
support, alimony, equitable division of the marital debts, and
equitable division of the marital property. A few months later, the
trial court entered a temporary order awarding DiAnn primary
physical custody of the children, with Ben allowed parent-time
pursuant to Utah Code section 30-3-35.1. The court ordered Ben
to pay $12,313 per month in child support, and $21,030 per month
in alimony. The parties were also ordered to continue paying
$2,500 ($1,250 each) per month to DiAnn’s father, to whom they
owed a significant amount of debt.
¶6 After DiAnn filed for divorce, but prior to trial, Ben
relocated to Florida and accepted employment there as a
neurosurgeon. In his new position, Ben was paid less than he had
been paid in St. George: instead of earning as much as $110,000
per month, Ben was now earning some $80,000 per month (nearly
$1 million annually) in gross income. But in Florida, Ben had a less
hectic work schedule, typically working 50 to 60 hours per week
as opposed to the 80 to 100 hours per week he had often been
working in St. George.
¶7 Also prior to trial, DiAnn filed a financial declaration with
the trial court. In that declaration, she claimed $32,577.24 in
monthly expenses, including—among other things—$16,132.24
for the mortgage payments on the parties’ large house; $1,880 for
maintenance on the house; $2,000 for food and household
supplies; $2,400 for utilities; $1,250 for half of the loan payments
to her father; $855 for the children’s extracurricular activities; and
20200949-CA 3 2022 UT App 88Fox v. Fox
$577.24 for travel, which included the costs associated with a
timeshare condominium the couple owned in Hawaii.
¶8 Soon thereafter, the case proceeded to a bench trial, which
was held over two days in September 2020. During the trial, the
court heard testimony from DiAnn and Ben, as well as several
other witnesses. DiAnn asked the court to find that Ben was
voluntarily underemployed—because he was earning less in
Florida than he had in St. George—and additionally asked that
Ben’s higher St. George salary be imputed to him for the purposes
of child support and alimony. In light of this request, and based
on her expert’s testimony that the parties had established a
standard of spending some $70,000 per month during the
marriage, DiAnn asked the court to award her $11,050 per month
in child support and some $35,000 per month in alimony.
¶9 In response to DiAnn’s argument that he was voluntarily
underemployed, Ben called an expert to testify that, even with his
reduced income, Ben’s earnings were above the 90th percentile of
income for neurosurgeons in the United States. Ben thus
requested that alimony and child support be calculated based on
his Florida income and that the court reject DiAnn’s assertion that
he was voluntarily underemployed.
¶10 We will discuss some of the particulars of the court’s ruling
in more detail below, on an issue-by-issue basis. But in broad
strokes, the court ruled in relevant part as follows: (a) the parties
were awarded joint legal custody of the children; (b) DiAnn was
awarded primary physical custody; (c) Ben was allowed parent-
time pursuant to Utah Code section 30-3-37; (d) Ben’s monthly
income would be calculated based on his Florida income, not his
St. George income; (e) DiAnn’s net income was initially set at $699
per month, but would increase to $2,915 per month after two
years; (f) Ben was not voluntarily underemployed; (g) Ben was
ordered to pay DiAnn $9,760 per month in child support, which
would decrease as the children transitioned into adulthood;
20200949-CA 4 2022 UT App 88Fox v. Fox
(h) Ben was ordered to pay DiAnn $15,039 per month in alimony
for a period of two years, and then $12,995 per month for another
22 years, unless terminated earlier “upon the death of either party,
the remarriage or cohabitation of [DiAnn], or for any other reason
under Utah law”; and (i) DiAnn was assigned sole responsibility
for the marital debt owed to her father.
ISSUES AND STANDARDS OF REVIEW
¶11 DiAnn now appeals various aspects of the trial court’s
rulings, and presents three principal issues for our review. 3 First,
she challenges various aspects of the court’s alimony award. We
review a court’s “alimony determination for an abuse of
discretion and will not disturb its ruling on alimony as long as the
court exercises its discretion within the bounds and under the
standards our supreme court has set and so long as the trial court
3. In her initial brief, DiAnn presented an additional issue:
whether the trial court erred when it ordered the parties to equally
share the costs associated with a court-ordered parenting
coordinator and parenting camp without DiAnn being awarded
any funds to pay for those services. We need not reach this issue,
however, because it has been rendered moot. See State v. Legg,
2018 UT 12, ¶ 13, 417 P.3d 592 (“We generally won’t decide an
issue that becomes moot while on appeal.”). In its order, the trial
court mandated that the parties retain a parent coordinator
“within sixty (60) days of the entry of [the] decree” and that “the
parties and minor children attend an ‘overcoming barriers camp’
(or a similar camp) provided such a camp is reasonably available
within one year of entry of the decree.” But DiAnn herself
acknowledged, at oral argument before this court, that the time
constraints on these two mandates had passed without any
money being expended on either a parenting coordinator or a
parenting camp. She thus conceded that this issue is now moot.
We agree, and therefore do not address this issue further.
20200949-CA 5 2022 UT App 88Fox v. Fox
has supported its decision with adequate findings and
conclusions.” Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242(quotation simplified).
¶12 Second, DiAnn argues that the court abused its discretion
when it assigned her the sole responsibility for the parties’ debt
owed to her father and included the full payment for that debt in
its alimony calculation. “The trial court’s division of debts is
reviewed for abuse of discretion.” Boggess v. Boggess, 2011 UT App
84, ¶ 2, 250 P.3d 86 (per curiam). And because trial courts are in
the “best position to weigh the evidence, determine credibility
and arrive at factual conclusions, they have considerable latitude”
to equitably divide marital debt “and their actions are entitled to
a presumption of validity.” Mullins v. Mullins, 2016 UT App 77,
¶ 20, 370 P.3d 1283 (quotation simplified). “Accordingly, it would
be inappropriate for an appellate court to reverse on an isolated
item of property or debt distribution.” Id. (quotation simplified).
“Rather, we must examine the entire distribution to determine if
the trial court abused its discretion.” Id. (quotation simplified).
¶13 And finally, DiAnn asserts that the court erred when it
found that Ben was not voluntarily underemployed. We “review
the trial court’s finding of voluntary unemployment or
underemployment and its calculation of imputed income for an
abuse of discretion.” Christensen v. Christensen, 2017 UT App 120,
¶ 10, 400 P.3d 1219. “We will not disturb a trial court’s findings of
fact unless they are clearly erroneous, that is, unless they are in
conflict with the clear weight of the evidence, or this court has a
definite and firm conviction that a mistake has been made.” Pope
v. Pope, 2017 UT App 24, ¶ 4, 392 P.3d 886 (quotation simplified).
ANALYSIS
¶14 We begin with DiAnn’s challenge to the trial court’s
alimony award, analyzing each aspect of that challenge in turn.
20200949-CA 6 2022 UT App 88Fox v. Fox
We then turn to DiAnn’s assertion that the court abused its
discretion in assigning her the marital debt owed to her father. We
conclude by examining DiAnn’s challenge to the court’s finding
that Ben was not voluntarily underemployed.
I. Alimony
¶15 “Under Utah law, the primary purposes of alimony are:
(1) to get the parties as close as possible to the same standard of
living that existed during the marriage; (2) to equalize the
standards of living of each party; and (3) to prevent the recipient
spouse from becoming a public charge.” Miner v. Miner, 2021 UT
App 77, ¶ 14, 496 P.3d 242 (quotation simplified). “Alimony is not
limited to providing for only basic needs but should be fashioned
in consideration of the recipient spouse’s station in life in light of
the parties’ customary or proper status or circumstances, with the
goal being an alimony award calculated to approximate the
parties’ standard of living during the marriage as closely as
possible.” Id. (quotation simplified).
¶16 During their marriage, DiAnn and Ben enjoyed a high
standard of living, and in an attempt to approximate that
standard of living, the trial court ordered Ben to pay DiAnn more
than $15,000 per month in alimony for two years, and nearly
$13,000 per month for 22 years thereafter. DiAnn takes issue with
this alimony award.
¶17 But in so doing, DiAnn does not challenge the court’s
decision about the duration or future reduction of the award, nor
does she take issue with any of the specific line-item calculations
the court made in arriving at the total alimony amount. Instead,
DiAnn advances two other arguments. First, she asserts that the
court erred by not starting its analysis by making a separate
finding regarding the parties’ “marital standard of living,” and by
not taking that standard of living sufficiently into account.
Second, DiAnn argues that the court abused its discretion when it
20200949-CA 7 2022 UT App 88Fox v. Fox
included the children’s extracurricular activity expenses in its
alimony calculation, and then ordered that DiAnn be responsible
for those expenses. We address each of these arguments, in turn.
A. Marital Standard of Living
¶18 DiAnn’s first challenge is an assertion that the trial court
failed to properly take into account the parties’ marital standard
of living. Specifically, relying on Rule v. Rule, 2017 UT App 137,
402 P.3d 153, DiAnn argues that the court failed to start its
alimony analysis by making a separate finding specifically
calculating the overall marital standard of living, and asserts that
the court erroneously “moved straight to an arbitrary needs-
based alimony analysis.” This, DiAnn asserts, contradicts the
“roadmap” set out in Rule. In particular, DiAnn points to her own
expert’s analysis—that the parties were spending, on average,
more than $70,000 per month during the marriage—and asserts
that the court should have concluded that she is entitled to half
that amount in alimony, at least as long as Ben is able to pay it.
¶19 DiAnn misreads Rule. To be sure, in that case we noted that
one of the purposes of alimony is “to get the parties as close as
possible to the same standard of living that existed during the
marriage,” and we categorized it as “inherently problematic for a
trial court to attempt to design an alimony award that advances
the overall goal of allowing the parties to go forward with their
lives as nearly as possible at the standard of living enjoyed during
marriage without first determining what that standard was in the
first instance.” See id. ¶¶ 14, 18 (quotations simplified). But we
clarified that a court appropriately takes that standard of living
into account by “assess[ing] the needs of the parties, in light of
their marital standard of living.” Id. ¶ 19 (quotation simplified);
see also id. ¶ 15 (noting that trial courts are required “to determine
the parties’ needs and expenses . . . in light of the marital standard
of living”). The ceiling on a recipient spouse’s alimony award is
represented by that spouse’s needs, viewed in light of the marital
20200949-CA 8 2022 UT App 88Fox v. Fox
standard of living. See id. ¶ 17 (“The receiving spouse’s needs
ultimately set the bounds for the maximum permissible alimony
award.”); see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 61,
402 P.3d 219 (stating that “in no case may the trial court award
[the recipient spouse] more alimony than [his or] her
demonstrated need”); Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197
P.3d 117 (stating that, “regardless of the payor spouse’s ability to
pay more, the recipient spouse’s demonstrated need must
constitute the maximum permissible alimony award” (quotation
simplified)). There is usually no need for a trial court to make a
separate specific finding regarding the overall “marital standard
of living” as measured by the total amount of money spent each
month by the couple while they were married, and we did not
intend to imply otherwise in Rule.
¶20 Indeed, in that case we made clear that we were not
prescribing any deviation from the “established . . . process to be
followed by courts considering an award of alimony.” See Rule,
2017 UT App 137, ¶ 19; see also id. ¶ 13 (citing the statute now
codified at Utah Code section 30-3-5(10)(a), and stating that
“courts must consider the statutory” alimony factors, which are
“the financial condition and needs of the recipient spouse,” “the
recipient’s earning capacity,” and “the ability of the payor spouse
to provide support” (quotation simplified)). The first step in that
process is for the court to “assess the needs of the parties, in light
of their marital standard of living.” Id. ¶ 19 (quotation simplified).
“This means that the court must determine the parties’ needs
reasonably incurred, calculated upon the standard of living
enjoyed during the marriage.” Id. (quotation simplified). In the
next step, the court must “determine the extent to which the
receiving spouse is able to meet [his or] her own needs with [his
or] her own income,” and if the receiving spouse “is able to meet
all [his or] her needs with [his or] her own income, then [the court]
should not award alimony.” Id. (quotation simplified). Finally,
and only if the court determines that the recipient spouse cannot
20200949-CA 9 2022 UT App 88Fox v. Fox
meet his or her own needs, the final step in the process is for the
court to “assess whether the payor spouse’s income, after meeting
his [or her] needs, is sufficient to make up some or all of the
shortfall between the receiving spouse’s needs and income.” Id.
¶ 20 (quotation simplified).
¶21 The trial court followed this three-step process in this case.
It made twenty-three separate line-item findings regarding
DiAnn’s reasonable monthly expenses, using her requested
amounts as a starting point, and it adjusted four of the line items
downward and three of them upward. The court determined that
DiAnn’s reasonable monthly needs, as adjusted, amounted to
$25,424.61. And on appeal, DiAnn does not take issue with any of
the twenty-three specific line-item findings. That is, she does not
assert that any of those particular findings—for instance, her
housing expenses, or her automobile expenses—are not in
harmony with the marital standard of living.
¶22 The court also made findings regarding DiAnn’s ability to
earn income, and determined that her net income (after taxes) was
$699 per month for the first two years, and then would be adjusted
to $2,915 per month. The court then subtracted her income and
the child support payments from her needs, and determined that
DiAnn would have a monthly shortfall of $15,039 per month for
the first two years, which would narrow to $12,995 per month
after that. On appeal, DiAnn does not specifically challenge these
calculations, including the court’s findings regarding her ability
to earn income.
¶23 Finally, the court assessed whether Ben had the ability to
pay DiAnn’s demonstrated shortfall, and determined that he did,
even using Ben’s Florida income rather than his St. George
income, and even after paying child support and meeting his own
reasonable monthly needs. DiAnn’s only complaint about this
analysis is that the trial court erred by using Ben’s Florida income
for the basis of its computation, as opposed to his St. George
20200949-CA 10 2022 UT App 88Fox v. Fox
income. But DiAnn of course does not quibble with the court’s
ultimate conclusion that Ben can meet every dollar of her
demonstrated shortfall.
¶24 We perceive no error in the procedure the trial court
employed in computing DiAnn’s alimony award. As noted, the
court appropriately went through the three-step process
required by applicable law. If DiAnn believed that the court
inappropriately assessed any of her individual expenses, as
measured in light of the marital standard of living, she had
every opportunity to challenge any of the specific line-item
calculations the court relied on in determining her monthly needs.
See Miner, 2021 UT App 77, ¶¶ 20–63 (evaluating an appellant’s
challenges to eleven separate line items in a trial court’s
calculation of a recipient spouse’s needs). But she does not
challenge any of them.
¶25 DiAnn has therefore not carried her appellate burden of
demonstrating that the trial court failed to appropriately take into
account the marital standard of living in calculating her needs. In
this case, the court was not required to make any specific finding
regarding how much total money the parties spent each month
during the marriage, and it was certainly not required to
presumptively award DiAnn half of any such amount as alimony.
In short, we perceive no abuse of discretion in the manner in
which the court assessed DiAnn’s needs or in which it took into
account the parties’ marital standard of living, and on that basis
we reject DiAnn’s first challenge to the alimony award.
B. Extracurricular Activities
¶26 DiAnn next contends that the court abused its discretion
when it included the minor children’s extracurricular activity
expenses in its alimony award to DiAnn. Specifically, she argues
that the extracurricular expenses should have been included in an
increased child support award instead of the alimony award or,
20200949-CA 11 2022 UT App 88Fox v. Fox
alternatively, that the court should have “issued a separate award
equitably dividing the expenses.” We disagree.
¶27 Presumptive monthly child support payment amounts are
set by statutory schedule, depending on the incomes of the
parents and the precise custody arrangement between them. See
Utah Code Ann. §§ 78B-12-205, -212, -301 (LexisNexis 2018). These
presumptive monthly payments are designed to include nearly all
reasonable needs of children, except for items that are statutorily
excluded (such as, for instance, medical expenses and work-
related childcare expenses). See Davis v. Davis, 2011 UT App 311,
¶ 17, 263 P.3d 520 (noting that medical expenses and work-related
childcare expenses have been “singled out” by the legislature as
something that “parents are ordered to pay in addition to their
regular child support obligations”). “Child-rearing expenses” that
are “not statutorily distinguished from regular child support
should be considered part and parcel of the child support award.”
Id. (quotation simplified).
¶28 In particular, we have held that “school fees” and
“extracurricular activities” are presumed to be included in the
“regular child support” payment amount, and ordinarily “must
be satisfied, if at all, out of the parties’ combined child support
obligations.” Id. ¶¶ 15, 17. Certainly, parties can agree “to share
such additional expenses in the interest of their children,” but if
they are unable to reach agreement on that score, such expenses
“must generally be budgeted as part of child support.” Id. ¶ 15.
Thus, in the present case, any expenses associated with the
extracurricular activities in which the Fox children participate
were designed to be budgeted as part of the $9,760 that DiAnn
receives in child support each month.
¶29 Based on Davis, then, the trial court would have been on
completely solid ground to decline DiAnn’s request to include a
line item of $855 for “extracurricular activities” in her list of
monthly expenses for purposes of the alimony calculation. But the
20200949-CA 12 2022 UT App 88Fox v. Fox
court went ahead and included that line item in its computation
of DiAnn’s monthly needs for alimony purposes anyway,
effectively giving DiAnn an $855 monthly bump in alimony to
which she may not have been entitled. 4
¶30 DiAnn looks this gift horse quite squarely in the mouth and
complains that the court should have given her this bonus
payment in a different form: by issuing a separate award—
consisting of neither child support nor alimony—commanding
Ben to pay the extracurricular expenses. Apparently, she is
concerned that, if she remarries, Ben’s obligation to pay these
expenses will evaporate along with the other alimony line items.
Certainly, the trial court could—within the wide discretion
afforded trial courts in such matters—have made such an award,
provided it adequately explained its reasons for doing so. See id.
¶ 17 (noting that a court can deviate from the presumptive child
support guidelines and order a higher amount designed to
include “school fees,” but such an order “must be supported by a
specific finding on the record supporting the conclusion that use
of the guidelines would be unjust, inappropriate, or not in the best
interest of the children” (quotation simplified)). But DiAnn falls
far short of persuading us that the court abused its discretion by
opting not to do so, especially given that she included this line
item in her financial declaration, which was the basis for her
alimony request. On this basis, we reject DiAnn’s second
challenge to the court’s alimony award.
II. Marital Debt
¶31 DiAnn next asserts that the trial court abused its discretion
when it divided the marital debt in such a way as to give her full
4. We note that Ben has not filed a cross-appeal in this case, and
does not, by that means or any other, challenge the court’s
decision to include extracurricular expenses in its computation of
DiAnn’s monthly needs for alimony purposes.
20200949-CA 13 2022 UT App 88Fox v. Fox
responsibility for the parties’ $181,000 obligation owed to DiAnn’s
father, and then included a $2,500 line item for payments
servicing that debt in DiAnn’s alimony award (thereby effectively
requiring Ben to pay that debt as part of his alimony obligation).
We perceive no abuse of discretion in the trial court’s orders
regarding the marital debt owed to DiAnn’s father.
¶32 In issuing a divorce decree, a trial court must include “an
order specifying which party is responsible for the payment of
joint debts, obligations, or liabilities of the parties contracted or
incurred during marriage.” Utah Code Ann. § 30-3-5(2)(c)(i)
(LexisNexis Supp. 2021). Importantly, our law requires only “a
fair and equitable, not an equal, division of the marital debts.”
Sinclair v. Sinclair, 718 P.2d 396, 398 (Utah 1986) (per curiam). And
as already mentioned, because trial courts are in the “best position
to weigh the evidence, determine credibility and arrive at factual
conclusions, they have considerable latitude” in dividing marital
debt, and their actions in this regard “are entitled to a
presumption of validity.” Mullins v. Mullins, 2016 UT App 77,
¶ 20, 370 P.3d 1283 (quotation simplified).
¶33 In the present case, we cannot say that the trial court
abused its discretion in assigning the marital debt owed to
DiAnn’s father to DiAnn. By way of counterbalance, the court
assigned Ben full responsibility for his medical school debts
(totaling some $145,000), and made each party responsible for the
debts on their respective vehicles. This division makes practical
sense, because it relieves DiAnn of any responsibility for debts
associated with Ben’s medical education, and it relieves Ben of
any direct responsibility (aside from alimony) for debts owed to
DiAnn’s father. The court recognized, however, that this
distribution of debts gave DiAnn “approximately $24,000 more in
debts” than it gave Ben, but the court stated that it would “use its
distribution of property to equalize this imbalance of debts.”
DiAnn makes no argument that the court failed to remedy this
imbalance. Indeed, the court awarded the parties’ timeshare
20200949-CA 14 2022 UT App 88Fox v. Fox
condominium in Hawaii to DiAnn alone, and it also awarded
DiAnn three of the four cars owned by the parties. Additionally,
the court awarded DiAnn an offset of $10,000 “to compensate her
for any dissipation of the marital estate” on the part of Ben, and
also awarded her $50,000 for attorney fees from any proceeds
made from the sale of the marital house prior to the parties evenly
splitting any remaining proceeds. Under the circumstances
presented here, DiAnn has not demonstrated any inequity or
abuse of discretion in the manner in which the court divided the
parties’ marital debts.
¶34 Furthermore, while DiAnn was indeed assigned
responsibility for the entire debt owed to her father, a line item for
the $2,500 monthly payment of that debt was included in her
alimony award. Thus, while the court made DiAnn responsible
for that debt, it is Ben, and not DiAnn, who is (at least indirectly)
paying for it. DiAnn nevertheless complains about this seemingly
favorable arrangement, again expressing concern that, if she were
to remarry, Ben’s obligation to front her the money to service the
debt owed to her father would evaporate along with the other
alimony line items. Perhaps a trial court, within the scope of its
discretion, could have done what DiAnn envisions. But under the
specific facts of this case, it is not an abuse of discretion for the
court to have equitably divided the debt, and then to have
required Ben to pay DiAnn an alimony amount that includes the
debt service payments on the obligation owed to DiAnn’s father.
Given the circumstances as they existed at the time of trial, DiAnn
has not demonstrated that the court’s orders regarding the
parties’ debt to DiAnn’s father exceeded the court’s wide
discretion in such matters.
III. Voluntary Underemployment
¶35 Finally, DiAnn argues that the trial court abused its
discretion when it found, for purposes of calculating child
support and alimony, that Ben was not voluntarily
20200949-CA 15 2022 UT App 88Fox v. Fox
underemployed. Specifically, DiAnn asserts that because Ben
took a job in Florida that paid him less than what he had been
making in St. George, the court should have concluded that Ben
is voluntarily underemployed and should have calculated child
support and alimony based on Ben’s previous St. George salary.
¶36 As an initial matter, we note that this entire issue is
irrelevant to the alimony computation, given our determination
(discussed above) that the trial court did not abuse its discretion
in making its alimony award. Even using Ben’s Florida salary for
purposes of computing Ben’s income, the trial court found that
Ben had the financial ability to make up 100% of the difference
between DiAnn’s income and her reasonable needs. See supra
¶¶ 19, 23–24. Thus, even if we were to agree with DiAnn that Ben
was voluntarily underemployed and that the trial court should
have used his St. George salary in computing his income, DiAnn’s
alimony award would not change. But because the issue could
still matter to the child support calculation, we proceed to address
the merits of DiAnn’s challenge to the trial court’s findings
regarding voluntary underemployment.
¶37 “A court may impute income to an underemployed
spouse.” Rayner v. Rayner, 2013 UT App 269, ¶ 7, 316 P.3d 455(quotation simplified). In order to do so, however, the court must
determine that the spouse “is voluntarily . . . underemployed.” Id.(quotation simplified). We agree with DiAnn that Ben’s
employment actions—in taking a new job in Florida—were
voluntary. See id. (“A spouse is voluntarily unemployed or
underemployed when he or she intentionally chooses of his or her
own free will to become unemployed or underemployed.”
(quotation simplified)). But DiAnn has not persuasively
demonstrated that the trial court abused its discretion in
determining that Ben was not underemployed.
¶38 The determination as to whether a party is underemployed
requires examination of all the relevant circumstances, and not
20200949-CA 16 2022 UT App 88Fox v. Fox
just whether a party’s salary has recently dropped. Indeed, a
party’s “current earnings, as compared to his [or her] historical
income, is merely one element in the matrix of factual issues
affecting the ultimate finding of whether [a party] is
underemployed.” Hall v. Hall, 858 P.2d 1018, 1026 (Utah Ct. App.
1993); see also Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 65, 402
P.3d 219 (stating that “income imputation shall be based upon
employment potential and probable earnings as derived from
employment opportunities, work history, occupation
qualifications, and prevailing earnings for persons of similar
backgrounds in the community” (quotation simplified)).
¶39 In the present case, the trial court did not abuse its
discretion in finding that Ben was not underemployed. Certainly,
Ben’s income is lower in Florida than it was in St. George. And a
drop in income can be an important factor in determining that a
spouse is underemployed. See, e.g., Arnold v. Arnold, 2008 UT App
17, ¶ 7, 177 P.3d 89. But the mere fact that a spouse’s income has
fallen does not necessarily mandate a finding of
underemployment. 5 In the present case, the court was presented
with ample evidence to support its determination that Ben—
despite his lower salary—was not underemployed. Ben had not
left his profession—he was employed as a neurosurgeon in St.
George, and he was employed as a neurosurgeon in Florida. And
even in Florida, Ben still made a lot of money; indeed, Ben’s expert
testified that Ben’s Florida salary—nearly $1 million per year—
was above the 90th percentile for neurosurgeons nationwide, not
5. By way of example, consider the hypothetical case of a
successful attorney who leaves private practice to assume a seat
in the judiciary. Especially given current market salaries for
attorneys in private practice, it is not at all difficult to imagine the
attorney experiencing a significant cut in salary upon taking the
bench. But it would be hard to describe the hypothetical new
judge as being, in any meaningful sense, underemployed.
20200949-CA 17 2022 UT App 88Fox v. Fox
just for doctors. The trial court also credited Ben’s testimony that
the work schedule he had been maintaining in St. George was not
sustainable, and that he was “over-worked and burnt out.” And
in Florida, Ben was still working 50 to 60 hours per week, up to
half again as much as a typical full-time job. All of this evidence
supports the court’s finding that Ben was not underemployed,
voluntarily or otherwise.
¶40 Under these circumstances, we cannot say the court abused
its discretion in finding that Ben was not voluntarily
underemployed. While the court’s determination was perhaps
not the only permissible one under the circumstances, it is
“entitled to a presumption of validity,” Mullins v. Mullins, 2016
UT App 77, ¶ 20, 370 P.3d 1283 (quotation simplified), was
supported by competent evidence, and did not constitute an
abuse of discretion.
CONCLUSION
¶41 We perceive no abuse of the trial court’s discretion in its
alimony award, its division of marital debts, or its determination
that Ben was not voluntarily underemployed. On that basis, we
reject DiAnn’s appellate challenges.
¶42 Affirmed.
20200949-CA 18 2022 UT App 88