2019 UT App 114
THE UTAH COURT OF APPEALS
LORI ANN EBERHARD,
Filed June 27, 2019
Third District Court, Salt Lake Department
The Honorable Paige Petersen
David Pedrazas, Attorney for Appellant Suzanne Marelius, Attorney for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
¶1 Todd Eberhard and Lori Ann Eberhard divorced in 2003 after twenty-nine years of marriage. The stipulated divorce decree provided that Todd would pay $4,200 in monthly alimony to Lori and that upon Todd’s retirement at age 65, “spousal support shall be reviewed and modified as provided by law.” After the divorce, Todd continued to work as a physician, while Lori, who had no prior work experience, obtained a job in customer service four years later, in 2007.
¶2 In anticipation of his planned retirement in 2016, Todd filed a petition to modify the decree, seeking to terminate or reduce alimony once he and Lori began receiving funds from his pension. After a bench trial, the district court denied Todd’s request to modify alimony at that time, ordering Todd to continue paying $4,200 in alimony. But the court ordered that when Lori “reaches her full retirement age of 66 and is eligible to receive a social security retirement payment,” Todd’s alimony payment would be reduced by that amount. The court further ordered Todd to pay half of Lori’s attorney fees and costs incurred defending against his petition to modify. Todd appeals, challenging the court’s alimony and attorney fees decisions. We affirm in part and remand for the entry of additional findings of fact, without restriction to any modifications the court deems appropriate.
STANDARDS OF REVIEW
¶3 District courts have “considerable discretion in determining alimony.” Boyer v. Boyer, 2011 UT App 141, ¶ 9, 259 P.3d 1063 (cleaned up). This court reviews “a district 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 [Utah appellate courts] have set and has supported its decision with adequate findings and conclusions.” Dahl v. Dahl, 2015 UT 79, ¶ 84 (cleaned up). Similarly, we “generally review a district court’s determination to modify or not to modify a divorce decree for an abuse of discretion.” Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882.
¶4 When considering a challenge to the sufficiency of the evidence, “we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous.” Dahl, 2015 UT 79, ¶ 121; see also Shuman v. Shuman, 2017 UT App 192, ¶ 3, 406 P.3d 258. A district court’s “factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if [we have] a definite and firm conviction that a mistake has been made.” Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).
¶5 The district court must “make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award.” Id. ¶ 14 (cleaned up). “Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Id. (cleaned up). Whether the district court’s findings are adequate presents a question of law. Dole v. Dole, 2018 UT App 195, ¶ 3, 437 P.3d 464; Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478.
¶6 We review the district court’s award of attorney fees under Utah Code section 30-3-3, including the amount of the award, for abuse of discretion. Dahl, 2015 UT 79, ¶ 168; Davis v. Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716.
¶7 Relevant to this appeal, the Utah Code instructs district courts to consider certain factors—known as the Jones factors— when determining alimony, including “the recipient’s earning capacity or ability to produce income,” “the financial condition and needs of the recipient spouse,” and “the ability of the payor spouse to provide support.” Utah Code Ann. § 30-3-5(8)(a)(i)– (iii) (LexisNexis 2013); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (listing these factors later codified in Utah Code section 30-3-5). The court’s findings on each statutory factor must be sufficiently detailed “to enable a reviewing court to ensure that the [district] court’s discretionary determination was rationally based upon these factors.” Keyes v. Keyes, 2015 UT App 114, ¶ 33, 351 P.3d 90 (cleaned up).
¶8 The Utah Code also instructs that district courts should generally “look to the standard of living, existing at the time of separation, in determining alimony.” Utah Code Ann. § 30-3-5(8)(e). “However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial.” Id.; see also Dahl v. Dahl, 2015 UT 79, ¶ 111 (“[W]hile an alimony award would ideally allow both spouses to maintain the standard of living enjoyed during the marriage, the court is nevertheless obligated to support any alimony award with specific factual findings as to each statutory factor and is permitted to deviate from the general rule in light of the relevant facts and equities.”). “Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties’ respective standards of living, and preventing either spouse from becoming a public charge.” Hansen v. Hansen, 2014 UT App 96, ¶ 6, 325 P.3d 864 (cleaned up). These same considerations apply in later modification proceedings. Nicholson v. Nicholson, 2017 UT App 155, ¶ 17, 405 P.3d 749.
¶9 Here, the district court relied on the parties’ testimony at the trial on the petition to modify to determine their standard of living at the time of their separation. Specifically, the court found that “during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full every month.”
¶10 The court then considered the Jones factors. It found that every month Lori, who was age 63 at the time of trial, earned $1,621.88 from her customer service job, received $4,200 in alimony, and received $1,533.74 as her share of Todd’s pension. After deducting taxes, Lori was left with a net monthly income of $6,141. Lori also had $330,000 in retirement accounts, which was her share of the divorce settlement. Lori had incurred loans and debt after the divorce, and her reasonable monthly expenses amounted to $5,309—an amount that the court found was “less than what [Lori] requires to live commensurate with the marital standard of living.”
¶11 As for Todd, who was 66 years old and remarried, the court found that every month he received $3,827.71 from his pension and $2,326 from Social Security, and drew $3,500 from various retirement accounts. After deducting taxes, Todd had a net monthly income of $7,654. In addition, the court found that Todd had $1.5 million in retirement accounts from which he could draw “variable” amounts “at his discretion.” Todd testified that he was supporting his current spouse who was not employed. The court found Todd’s reasonable monthly expenses to be $8,041—a figure that did not include the alimony payment. The court also found that he had “a very secure and comfortable lifestyle” and “no debt.” As a result, the court found that Todd “has the ability to pay $4,200 [in] monthly alimony.”
¶12 In arriving at its decision, the district court deemed two other statutory factors “significant.” In particular, the court considered “whether the recipient spouse directly contributed to any increase in the payor spouse’s skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage,” Utah Code Ann. § 30-3-5(8)(a)(vii), and whether “one spouse’s earning capacity has been greatly enhanced through the efforts of both spouses during the marriage,” id. § 30-3-5(8)(g). The court determined that both of these factors were “applicable and support no reduction of alimony in this case.”
¶13 Based on these findings, the court denied Todd’s request to terminate or reduce alimony at that time. It determined that Todd will continue to pay $4,200 in monthly alimony for three years—until Lori reaches age 66 and qualifies for Social Security. At that point, Lori will receive about $1,319 per month from Social Security, and the court ordered that Todd will then be allowed to reduce the alimony payment by the amount Lori receives from Social Security. In so doing, the court stated that Lori’s income from her job, alimony, and Todd’s pension are presently “needed to meet her reasonable expenses,” but even then “she will still not have the standard of living of the marriage.” It noted that Lori’s needs “include the shortfall she has accumulated over the years since the divorce” and that Lori was “presently only barely meeting her needs for that debt service and reasonable monthly expenses.” Given these considerations, the court stated its “intent to move [Lori] closer to being able to pay off her debt and better achieve a standard of living commensurate with the marital standard of living in this alimony award.” However, the court made no specific finding as to what Lori’s reasonable total monthly needs would be, observing only that her needs were greater than her current monthly expenses of $5,309.
¶14 We address Todd’s challenges to the alimony award as follows: (A) the marital standard of living, (B) Lori’s earning capacity, (C) Lori’s needs, (D) Todd’s ability to provide support, and (E) the parties’ line-item expenses. We affirm the district court in most respects, but we remand for the court to provide additional findings on the issues of Lori’s needs and Todd’s ability to pay.
A. The Marital Standard of Living
¶15 Todd contends that the district court’s findings about the parties’ standard of living at the time of divorce—particularly regarding whether the cars were paid off and whether the parties paid their bills in full—were not supported by sufficient evidence. Todd also contends, in a conclusory manner, that the district court’s findings were inadequate.
¶16 As stated, the court found that “[t]he trial testimony confirmed that during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full each month.” The court noted that the parties’ testimonies in this regard were “quite consistent” and were sufficient to support its findings regarding the standard of living at the time of the divorce.
¶17 Todd has not shown clear error in the district court’s findings on this score. First, Todd overlooks the fact that Lori testified that during the marriage she always had a car and they “paid for [their] cars outright.” Second, Todd ignores Lori’s testimony that, except for the house, they had no debt, “paid off [their] credit cards,” and had funds available for unexpected expenses like replacing tires on a car. We conclude that Lori’s testimony in this regard is sufficient evidence to support the district court’s findings. See Bond v. Bond, 2018 UT App 38, ¶ 10, 420 P.3d 53 (reasoning that “[b]ecause the trial court’s factual findings are clearly supported by [a witness’s] testimony, we cannot conclude that they lack general evidentiary support”); see also Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994 (“[A]n appellate court’s role is not to reweigh the evidence presented at trial but only to determine whether the court’s decision is supported by the evidence, leaving questions of credibility and weight to the trial court.”).
¶18 Todd’s general challenge to the adequacy of the district court’s findings also fails. The court explicitly stated that in considering the parties’ standard of living existing at the time of divorce, it was relying on the parties’ trial testimony, and Todd has not established that the court failed to show “the steps by which the ultimate conclusion on each factual issue was reached.” See Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (cleaned up). We therefore reject Todd’s arguments about the sufficiency of the evidence and adequacy of the district court’s findings regarding the parties’ standard of living.
B. Lori’s Earning Capacity
¶19 Todd contends that in considering Lori’s earning capacity and ability to produce income, the district court “should have included [Lori’s] income from Social Security and the unearned income from her retirement [accounts].”
¶20 District courts generally have “broad discretion in selecting an appropriate method of assessing a spouse’s income.” Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255; see also, e.g., Davis v. Davis, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716 (concluding that “while the trial court could have considered [a portion of the wife’s monthly paycheck that she saved for retirement] as income, the court did not exceed its permitted range of discretion in choosing not to do so” (cleaned up)). Indeed, Utah law specifically grants district courts “flexibility to consider all sources of income” without mandating that the court treat all sources as income for purposes of calculating alimony. See Busche v. Busche, 2012 UT App 16, ¶ 31, 272 P.3d 748; see also Crompton v. Crompton, 888 P.2d 686, 689 (Utah Ct. App. 1994) (explaining that “it would be inappropriate for an appellate court to tie the hands of a [district] court” by requiring it in every case to confine its consideration of income in a certain way). Such matters are “left to the [district] court’s judgment,” Busche, 2012 UT App 16, ¶ 31, and will not be set aside absent “a clear and prejudicial abuse of discretion,” Griffith v. Griffith, 959 P.2d 1015, 1019 (Utah Ct. App. 1998), aff’d, 1999 UT 78, 985 P.2d 255.
¶21 In support of his position, Todd relies on Utah caselaw stating that “when determining an alimony award, it is appropriate and necessary for [district] courts to consider all sources of income.” Hansen v. Hansen, 2014 UT App 96, ¶ 14, 325 P.3d 864 (cleaned up). It is correct that district courts “must be able to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source—overtime, second job, self-employment, etc., as well as unearned income.” Crompton, 888 P.2d at 689. But while this caselaw directs district courts to consider all sources of income when determining alimony, it does not dictate that all sources of income be counted as income received by a spouse for that purpose. Rather, we read this caselaw as preserving a district court’s broad discretion to treat sources of income as the court sees fit under the circumstances. See Griffith, 1999 UT 78, ¶ 19; Busche, 2012 UT App 16, ¶ 31.
¶22 In calculating Lori’s earning capacity and ability to produce income, the district court considered and declined to include as income any funds that Lori could potentially draw from her retirement accounts or that she could receive by electing to collect Social Security benefits early. The court found that if Lori began receiving Social Security benefits at her then-current age of 63, she would receive less than she would if she waited until age 66. As the court stated, “[t]he parties did not dispute that at [Lori’s] current age she would receive 37.8% of the 50% retirement benefit she could claim on [Todd’s] earnings record” and it was “undisputed that if she waited until age 66, her full retirement age, she could claim the full 50% on that earning record.” Lori would “suffer a financial penalty” if she began drawing on Social Security benefits before age 66. As a result, the court was unwilling “to require [Lori] to make an unwise financial decision” and declined to include these sources in its calculation of Lori’s income.
¶23 Todd has not shown an abuse of discretion under these circumstances. Lori was not receiving Social Security benefits and would have faced reduced benefits if she began receiving them early. Given the fact that the court was concerned that Lori’s “needs have not been met by the alimony order made at the divorce,” the court considered Lori’s potential Social Security benefits and reasonably decided not to impose an “unwise financial decision” on Lori by requiring her to start receiving a smaller amount of Social Security benefits than she otherwise would be entitled to take three years later.
¶24 Todd also has not shown that the district court abused its discretion by choosing not to include in Lori’s income any unearned income generated from her retirement accounts. Though Todd urged the court to assume “a modest 6% interest” rate on Lori’s retirement accounts, he did not provide evidence in support of his request, and Lori did not agree with that figure. At trial, Lori testified that two-thirds of her retirement account was tied up in annuities from which she would not receive income until she reaches age 70. She testified that she had not yet drawn on the other one-third of her retirement, and when asked whether she was earning interest, she responded that her account “fluctuates up and down” and could not say whether she had realized an increase. In light of the record and the district court’s “broad discretion in selecting an appropriate method of assessing a spouse’s income,” Griffith, 1999 UT 78, ¶ 19, the court did not exceed the bounds of its discretion in declining to treat any unearned income on Lori’s retirement accounts as income for purposes of determining alimony.
¶25 Moreover, Todd has cited no authority for the proposition that a court must require a spouse to claim early Social Security benefits or begin withdrawals from retirement accounts. We have located no such Utah authority. But we note that authority from other jurisdictions counters Todd’s position. See, e.g., Huertas Del Pino v. Huertas Del Pino, 229 So. 3d 838, 839–42 (Fla. Dist. Ct. App. 2017) (holding that, for purposes of awarding alimony, income should not be imputed to an ex-spouse “based on her eligibility for Social Security retirement benefits she had not yet applied to receive” when “there was no evidence of any bad faith” on the ex-spouse’s part and when “she articulated a rational reason for delaying her application for Social Security benefits—namely, that she would receive greater benefits by postponing her receipt of benefits”); McKernan v. McKernan, 135 A.3d 1116, 1117–18 (Pa. Super. Ct. 2016) (locating “no authority empowering a trial court to order [the wife] to apply for and obtain Social Security Retirement benefits prior to reaching full retirement age,” or requiring the inclusion as part of the wife’s income the benefit amount for which she is eligible); see also, e.g., Gutierrez v. Gutierrez, 972 P.2d 676, 681 (Ariz. Ct. App. 1998) (stating that a receiving spouse “should not be compelled to withdraw the money in [a] retirement account to supplement her modest income” and that the “spouse should not be expected to live off both the principal, and interest, exhausting whatever financial reserves she possesses to the extent that when she no longer had any earning capacity there would be nothing left upon which she could draw” (cleaned up)); In re Marriage of Novak, 83 S.W.3d 597, 601 (Mo. Ct. App. 2002) (explaining that income from retirement accounts “must be considered in calculating benefits” but that “trial courts are not required to impute income [from] retirement and IRA accounts in every case” given their broad discretion in this area).
¶26 For these reasons, we conclude that the district court acted within its discretion when it declined to include Social Security and unearned income on Lori’s retirement accounts as part of her current income. Given our conclusion in this regard, we likewise conclude that the district court did not abuse its discretion in denying Todd’s motion for a new trial based on these same issues.
C. Lori’s Needs
¶27 Next, Todd contends that the district court erred in finding that Lori’s needs were unmet when evaluating her financial condition and needs. Todd’s argument has three parts. First, he relies on Utah Code section 30-3-5(8)(i)(ii) to argue that the district court erroneously considered Lori’s needs that did not exist at the time of the divorce. Second, he argues that the evidence was insufficient to support the court’s finding that Lori’s needs were not being met at the time the decree was entered. Third, he contends that the court’s findings regarding Lori’s needs are not adequate.
1. Utah Code Section 30-3-5(8)(i)(ii)
¶28 Todd first claims that the district court “improperly addressed [Lori’s] needs . . . that did not exist at the time the decree was entered.” Todd bases this argument on Lori’s purchase of a furnace and air conditioner, her periodic visits to a chiropractor, her car loan for a new vehicle, and her “debt incurred after voluntarily being unemployed for 4 years after the divorce.” Citing Utah Code section 30-3-5(8)(i)(ii), Todd then concludes that Lori “failed to cite any extenuating circumstances that would allow the court to address [her] needs . . . that didn’t exist at the time of divorce.”
¶29 Utah Code section 30-3-5(8)(i)(ii) provides that “[t]he court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.” Utah Code Ann. § 30-3-5(8)(i)(ii) (LexisNexis 2013). In other words, absent extenuating circumstances, the statute “generally prevents a district court from modifying an alimony award to account for new needs.” Fish v. Fish, 2016 UT App 125, ¶ 6, 379 P.3d 882.
¶30 In a pretrial motion in limine, Todd asserted that, under section 30-3-5(8)(i)(ii), the court was “prohibited from addressing [Lori’s] increased needs . . . without finding extenuating circumstances.” According to the motion, the district court “should only review whether [Todd] has the ability to pay the current amount of ordered alimony and whether [Lori’s] need for $4,200 per month has been reduced based upon the pension benefits received from [Todd’s] retirement and [Lori’s] Social Security.” Before the presentation of evidence at trial, the court ruled that it would not exclude any evidence and that it would figure out later “how the law should apply to whatever facts” were adduced at trial.
¶31 On appeal, Todd asserts that the district court did not find extenuating circumstances under section 30-3-5(8)(i)(ii) and that the court erroneously addressed Lori’s needs that did not exist at the time of divorce. We reject..
The Utah Rules of Civil Procedure have been amended with a new rule, Rule 109, entitled “Injunction in Certain Domestic Relations Cases”. The rule does not go into effect until November 1, 2019, but when it does, it will affect every Utah divorce case and other kinds of family law cases. Here is the text of the rule with the highlights in red text.
Utah Rules of Civil Procedure Rule 109. Injunction in Certain Domestic Relations Cases
(effective November 1, 2019)
(a) Actions in which a domestic injunction enters. Unless the court orders otherwise, in an action for divorce, annulment, temporary separation, custody, parent time, support, or paternity, the court will enter an injunction when the initial petition is filed. Only the injunction’s applicable provisions will govern the parties to the action.
(b) General provisions.
(b)(1) If the action concerns the division of property then neither party may transfer, encumber, conceal, or dispose of any property of either party without the written consent of the other party or an order of the court, except in the usual course of business or to provide for the necessities of life.
(b)(2) Neither party may, through electronic or other means, disturb the peace of, harass, or intimidate the other party.
(b)(3) Neither party may commit domestic violence or abuse against the other party or a child.
(b)(4) Neither party may use the other party’s name, likeness, image, or identification to obtain credit, open an account for service, or obtain a service.
(b)(5) Neither party may cancel or interfere with telephone, utility, or other services used by the other party.
(b)(6) Neither party may cancel, modify, terminate, change the beneficiary, or allow to lapse for voluntary nonpayment of premiums, any policy of health insurance, homeowner’s or renter’s insurance, automobile insurance, or life insurance without the written consent of the other party or pursuant to further order of the court.
(c) Provisions regarding a minor child. The following provisions apply when a minor child is a subject of the petition.
(c)(1) Neither party may engage in non-routine travel with the child without the written consent of the other party or an order of the court unless the following information has been provided to the other party:
(c)(1)(A) an itinerary of travel dates and destinations;
(c)(1)(B) how to contact the child or traveling party; and
(c)(1)(C) the name and telephone number of an available third person who will know the child’s location.
(c)(2) Neither party may do the following in the presence or hearing of the child:
(c)(2)(A) demean or disparage the other party;
(c)(2)(B) attempt to influence a child’s preference regarding custody or parent time; or
(c)(2)(C) say or do anything that would tend to diminish the love and affection of the child for the other party, or involve the child in the issues of the petition.
(c)(3) Neither party may make parent time arrangements through the child.
(c)(4) When the child is under the party’s care, the party has a duty to use best efforts to prevent third parties from doing what the parties are prohibited from doing under this order or the party must remove the child from those third parties.
(d) When the injunction is binding. The injunction is binding
(d)(1) on the petitioner upon filing the initial petition; and
(d)(2) on the respondent after filing of the initial petition and upon receipt of a copy of the injunction as entered by the court.
(e) When the injunction terminates. The injunction remains in effect until the final decree is entered, the petition is dismissed, the parties otherwise agree in a writing signed by all parties, or further order of the court.
(f) Modifying or dissolving the injunction. A party may move to modify or dissolve the injunction.
(f)(1) Prior to a responsive pleading being filed, the court shall determine a motion to modify or dissolve the injunction as expeditiously as possible. The moving party must serve the nonmoving party at least 48 hours before a hearing.
(f)(2) After a responsive pleading is filed, a motion to modify or to dissolve the injunction is governed by Rule 7 or Rule 101, as applicable.
(g) Separate conflicting order. Any separate order governing the parties or their minor children will control over conflicting provisions of this injunction.
(h) Applicability. This rule applies to all parties other than the Office of Recovery Services.
Utah Family Law, LC | divorceutah.com | 801-466-9277
This opinion is subject to revision before final publication in the Pacific Reporter
Gardner v. Gardner – 2019 UT 28
IN THE SUPREME COURT OF THE STATE OF UTAH
CHRISTINA L. GARDNER, Appellant,
NELSON D. GARDNER, Appellee.
Filed June 27, 2019
On Certification from the Court of Appeals
Third District, Salt Lake
The Honorable Matthew Bates
Robert W. Hughes, Julie J. Nelson, Erin B. Hull, Salt Lake City, for appellant
Jill L. Coil, Luke A. Shaw, Kyle O. Maynard, Sandy, David W. Read, Salt Lake City, for appellee
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
¶ 1 After a twenty-two year marriage, Nelson Gardner and Christina Gardner divorced. Before the divorce trial, they settled issues related to child custody and the distribution of their marital property. But they could not agree on the proper terms of Mr. Gardner’s alimony obligation to Ms. Gardner. After a three-day bench trial, the district court determined that Ms. Gardner was entitled to alimony, but, because of her extramarital sexual affairs, the court reduced her alimony award in amount and duration.
¶ 2 Specifically, the court calculated the amount of the alimony award based on Ms. Gardner’s expected reasonable monthly expenses, rather than on the monthly expenses she had incurred while married to Mr. Gardner. The court also set the alimony award for a period of ten years rather than the maximum statutory length of twenty-two years. The court stated that it was making these reductions because it did not believe it would be fair, where Ms. Gardner’s conduct had substantially contributed to the demise of the marital relationship, to obligate Mr. Gardner to maintain Ms. Gardner at the standard of living she enjoyed during the marriage.
¶ 3 Ms. Gardner now appeals the terms of the alimony award, arguing the court erred in the following respects: (1) in determining that her infidelities substantially contributed to the end of the marriage; (2) in setting the specific terms of the alimony award; (3) in imputing income to her at an “arbitrary amount”; (4) in failing to consider the tax burden of the alimony award; and (5) in denying her request for attorney fees. Because none of the alleged errors constituted an abuse of the district court’s discretion or were plainly incorrect, we affirm the district court’s alimony determination on all counts.
¶ 4 Nelson Gardner and Christina Gardner were married for twenty-two years before divorcing in 2017. During the course of the marriage, Mr. Gardner worked full-time, and Ms. Gardner stayed home with their five children. Although the couple had agreed to this arrangement, after their youngest child turned five, Mr. Gardner frequently encouraged Ms. Gardner to work outside the home or to obtain additional education.
¶ 5 At the time of the divorce, Mr. Gardner worked as a “global director of business development,” making roughly $200,000 per year. Ms. Gardner, on the other hand, did not have consistent employment but “occasionally worked part-time, earning $11 or $12 per hour.” Ms. Gardner does not have a college degree or any professional license, but she has earned money teaching swimming, piano, sewing, and art classes. Also, she has earned sizeable commissions for her artwork, although not on a consistent basis.
¶ 6 The couple’s relationship had a lot of “ups and downs” throughout the marriage. Mr. Gardner testified that the key factor in the couple’s marital discord was Ms. Gardner’s “multiple episodes of infidelity.” In 2007 and 2009, Ms. Gardner had extramarital sexual affairs. Although the parties appeared to have “reconciled and moved on” following these affairs, the court found that Mr. Gardner had suspected Ms. Gardner of having another affair in 2013. And, according to Mr. Gardner, the “final nail” was in 2016 when he discovered that Ms. Gardner had developed an “inappropriate relationship” with another man. He made this discovery after Ms. Gardner was injured in an accident while allegedly spending time with that man. Mr. Gardner filed for divorce shortly thereafter.
¶ 7 Although both parties also testified to the existence of other
marital problems, including “mutual verbal abuse” and one act of physical abuse by Ms. Gardner, as well as to arguments over finances and marital responsibilities, the district court found that it was Ms. Gardner’s “sexual relationships with persons other than [Mr. Gardner that] substantially caused the breakup of the marriage relationship.” The district court determined that this constituted “fault” under Utah Code section 30-3-5, and so could be considered as part of the court’s alimony determination.
¶ 8 The court factored fault into its alimony determination in two ways. First, it held that, due to Ms. Gardner’s fault, it need not pursue the typical goal of equalizing the standards of living between the parties. Second, it determined that Ms. Gardner was not entitled to alimony “for the maximum allowed duration.” It reasoned that these reductions were warranted because it would be “unfair for one of the parties to cause the breakup of the marriage relationship but to continue to enjoy the temporal and material benefits of having the (ex-)spouse support an affluent life-style enjoyed by both during the marriage.”
¶ 9 The court departed from the goal of equalization by calculating Ms. Gardner’s alimony award based on “reasonable monthly expenses” rather than on the expected monthly expenses she incurred while living at the lifestyle she enjoyed before the divorce. This resulted in a $1,513 reduction in Ms. Gardner’s estimated “need”—from $6,950 to $5,437 per month.
¶ 10 The court arrived at this reduced number, in part, by reducing her expected housing expenses “from $2,455 [per] month to $1,600 [per] month.” It concluded that although $1,600 per month might not be enough to buy a home in her former neighborhood, it should be enough to rent “a three bedroom apartment . . . in that area” or to purchase “a modest home, probably on the west side of the freeway.” The court also reduced other anticipated living expenses, such as Ms. Gardner’s anticipated car payment and gas and utility expenses, to reflect more “reasonable” monthly expenses.
¶ 11 With Ms. Gardner’s adjusted monthly expenses in mind, the court set out to calculate an alimony payment amount that would meet her needs. As the first step in this calculation, the court imputed an income of $1,300 per month to Ms. Gardner. Next, the court factored in the $2,137 per month in child support payments that Ms. Gardner would be receiving from Mr. Gardner until the two minor children turned eighteen or graduated from high school, whichever occurred later. Finally, the court awarded Ms. Gardner $2,000 per month in alimony payments. Adding the imputed income, child support, and alimony together, the court calculated that Ms. Gardner would have an income of $5,437 ($4,137 of which would come from Mr. Gardner) per month to match her expected reasonable needs of $5,437.
¶ 12 The court also determined that the alimony payment amount would increase to $2,368 per month once their second youngest son turned eighteen or graduated from high school. And it would increase again to $3,128 per month once their youngest son turned eighteen or graduated from high school. Thereafter, the alimony amount would decrease by $200 per year until the term for alimony expired or terminated for another reason. The court explained that this “step-down” arrangement was designed “to encourage [Ms. Gardner] to start working, get some education, or, if she is indeed disabled, to seek income from a government or charitable disability program.”
¶ 13 Although the court acknowledged that under the adjusted monthly totals, Ms. Gardner would not be able to enjoy “the same affluent life-style that she had during the course of the marriage,” it explained that such a result was fair in light of its fault determination because to do otherwise would have the effect of “penaliz[ing] Mr. Gardner for something that really did not appear . . . was his fault.”
¶ 14 The court also factored fault into its alimony calculation by deciding that Ms. Gardner was “not entitled to receive alimony for the maximum allowed duration under the statute, which is the length of the marriage.” So the court ordered Mr. Gardner to pay alimony for a ten-year period, rather than the maximum allowed period of twenty-two years.
¶ 15 Ms. Gardner now appeals the terms and the length of the alimony award. The appeal was initially filed in the court of appeals, but that court certified it to us. We have jurisdiction pursuant to Utah Code section 78A-3-102(3)(b).
Standard of Review
¶ 16 Ms. Gardner raises a number of issues on appeal. First, she challenges the district court’s fault determination, as well as the terms of her alimony award. We review a district court’s alimony determination “for an abuse of discretion and ‘will not disturb [its] ruling on alimony as long as the court exercises its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions.’” Second, she argues that the district court plainly erred when it failed to account for the tax burden imposed by the imputed income and by Ms. Gardner’s alimony award. This issue was not preserved, so we address it under the plain error doctrine. Finally, Ms. Gardner argues that the court abused its discretion when it failed to award her attorney fees under Utah Code section 30-3-3(1). We review a district court’s decision to award attorney fees pursuant to this statute for an abuse of discretion.
¶ 17 Ms. Gardner challenges several aspects of the district court’s alimony determination. First, she argues the court abused its discretion when it determined that “statutorily-defined fault substantially contributed to the breakup of the marriage.” Second, she argues the court misapplied the law in determining the terms of the alimony award without achieving “the first two ‘primary aims of alimony.’” Third, she argues the court abused its discretion in imputing income to her. Fourth, she argues the court plainly erred by failing to consider her tax burden when determining the alimony amount. And finally, she argues the court abused its discretion when it declined to award her attorney fees under the divorce statute.
¶ 18 In divorce actions, a district court “is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Accordingly, we will reverse only if (1) “there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error”; (2) the factual findings upon which the award was based are “clearly erroneous”; or (3) the party challenging the award shows that “such a serious inequity has resulted as to manifest a clear abuse of discretion.” Because “we can properly find abuse only if no reasonable person would take the view adopted by the trial court,” appellants have a “heavy burden” to show that an alleged error falls into any of these three categories. After reviewing the district court’s alimony determination under this standard, we conclude that none of the errors Ms. Gardner alleges constitute reversible error. Accordingly, we affirm.
I. We Affirm the District Court’s Determination That Ms. Gardner’s Affairs Substantially Contributed to the Divorce
¶ 19 First, we consider whether the district court abused its discretion by determining, under Utah Code section 30-3-5(8)(c), that Ms. Gardner was at fault in causing the divorce. We hold that it did not.
¶ 20 The court found that Ms. Gardner had engaged in wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship. But in doing so, the court did not explain how it defined the term “substantially contributed”—a term that is not defined in statute or our caselaw. So, as part of our determination, we must clarify what constitutes conduct that “substantially contributes” to a divorce. Under this clarified standard, we conclude that the district court did not err in making its fault determination.
A. Under Utah Code section 30-3-5(8)(c), “substantially contributed” means conduct that was a significant cause of the divorce
¶ 21 Utah Code section 30-3-5(8)(b) authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” And Section 30-3-5(8)(c) states that a spouse’s participation in an extramarital affair constitutes fault if it “substantially contributed” to the breakup of the marriage. No Utah appellate court has defined what constitutes conduct that “substantially contributed” to a divorce. Accordingly, we consider the meaning of the term as a matter of first impression.
¶ 22 Under the plain meaning of the term “substantially contributed,” the conduct at issue must be an important or significant factor in the divorce, but it does not have to be the first cause, or the only cause. Merriam-Webster’s Collegiate Dictionary defines “substantial” variously as “not imaginary or illusory,” “considerable in quantity,” and “being largely but not wholly that which is specified.” Although none of these definitions are a perfect fit with the use of “substantial” in section 30-3-5(8), each definition suggests that “substantial” means a considerable or important part of something, but not necessarily the entire part. Under these definitions, a substantial cause is one that is sufficient to lead to the breakup of the marriage, but is not necessarily the only identifiable cause. This is the same way in which “substantial” is used in other areas of law.
¶ 23 For example, in Utah we employ a “substantial factor” test when determining causation in negligence actions. Black’s Law Dictionary defines the “substantial-cause test” as the “principle that causation exists when the defendant’s conduct is an important or significant contributor to the plaintiff’s injuries.” So according to Black’s Law Dictionary, a substantial cause can be defined as an “important or significant contributor” to a particular harm.
¶ 24 And the Restatement (Second) of Torts defines “substantial” similarly:
The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the so-called “philosophic sense,” which includes every one of the great number of events without which any happening would not have occurred. Each of these events is a cause in the so-called “philosophic sense,” yet the effect of many of them is so insignificant that no ordinary mind would think of them as causes.
¶ 25 So, like the Black’s Law Dictionary definition, the Restatement describes a substantial cause as a cause that a reasonable person would consider an important or significant factor in the bringing about of a specific event. This definition applies equally well in the divorce context.
¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.
¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.
B. The district court did not abuse its discretion in determining that Ms. Gardner’s extramarital affairs substantially contributed to the divorce
¶ 28 In this case, the district court held that Ms. Gardner’s “infidelity substantially contributed to the breakup of the marriage relationship.” As Ms. Gardner herself acknowledges in her brief, fault in this case could be established only if the court found that Ms. Gardner (1) “engag[ed] in sexual relations with a person other than the party’s spouse” and by so doing she (2) “substantially contributed to the breakup of the marriage.” Ms. Gardner claims that “no conduct meets both [of these] elements.” But the district court found otherwise. Because the court did not misapply the law, and its findings are not clearly erroneous, it did not abuse its discretion in concluding that Ms. Gardner’s conduct substantially contributed to the breakup of the marriage.
¶ 29 In the divorce decree, the district court found that Ms. Gardner “had affairs involving sexual relations with persons other than her spouse in 2007 and 2009.” The court also found that Mr. Gardner “suspected another affair in 2013 and [Ms. Gardner] admitted to an inappropriate relationship in 2016 at the time of the filing of petition for divorce[,] [which] had not yet become physical.” Finally, the court found that Mr. Gardner “filed for divorce because [Ms. Gardner] had previously been unfaithful and had commenced another inappropriate relationship that [Mr. Gardner] believed would become a sexual relationship.” Based on these factual findings, the court determined that “Ms. Gardner’s sexual relationships with persons other than [Mr. Gardner] substantially caused the breakup of the marriage relationship.” The court did not misapply the law in making this determination.
¶ 30 Ms. Gardner argues the court erred by characterizing her relationship with another man in 2016 as a sexual relationship. But she does not point to any place where the district court suggested that the 2016 relationship constituted a sexual relationship. Rather, the court determined that Ms. Gardner had engaged in extramarital affairs in 2007 and 2009, and then found that “Ms. Gardner’s sexual relationships with persons other than [Mr. Gardner] caused the breakup of the marriage relationship.” Accordingly, Ms. Gardner fails to show that the court misapplied the law by incorrectly characterizing a non-physical relationship as a sexual relationship.
¶ 31 Ms. Gardner also fails to show that the court’s fault finding was clearly erroneous. Importantly, she does not deny that she engaged in extramarital affairs in 2007 and 2009, so the first element of fault is met. Instead, she argues that the district court clearly erred when it found those affairs to have substantially caused the breakup of the marriage. We disagree.
¶ 32 In reviewing a district court’s factual findings, we must keep in mind that the district court “has a comparative advantage in its firsthand access to factual evidence, and because there is no particular benefit in establishing settled appellate precedent on issues of fact, there is a potential downside and no significant upside to a fresh reexamination of the facts on appeal.” So, under our clearly erroneous standard, we will disturb a court’s factual findings only where the court’s conclusions do not logically follow from, or are not supported by, the evidence.
¶ 33 Ms. Gardner argues the court clearly erred for two reasons. First, she asserts the court clearly erred in concluding that other causes “did not substantially contribute to the breakup of the marriage relationship,” because “‘irreconcilable differences’ provided not only ‘[an]other reasonable explanation,’ but the most ‘reasonable explanation’ for the divorce.” Second, she asserts the court clearly erred because the extramarital affairs played a “relatively minor role in the divorce.” But neither argument convinces us that the court’s findings were clearly erroneous.
¶ 34 As evidence of irreconcilable differences, Ms. Gardner points to “multiple disputes unrelated to the infidelity,” including disputes over their level of religious involvement, their division of labor in the home, and finances, as well as to episodes of mutual verbal abuse, and one episode in which she hit Mr. Gardner. But, as we have already discussed, conduct need not be the first, or only, cause of the breakup of the marriage for it to substantially contribute to the divorce. Instead, it need only be an important or significant cause. So the evidence of other sources of contention does not foreclose the possibility that Ms. Gardner’s multiple episodes of infidelity substantially contributed to the divorce. And when the other evidence presented at trial is considered, we conclude that the district court’s fault determination is not clearly erroneous.
¶ 35 In fact, the record evidence suggests that Ms. Gardner’s extramarital affairs were a significant, if not the primary, impetus for the demise of the marriage. At trial, Mr. Gardner was asked what fueled the breakup of the parties’ marriage, and he replied as follows:
It goes back a long ways. There’s been lots of ups and downs in the marriage, lots of ups and downs. There’s been infidelity that took place back in 2005, ‘6, ‘7, I don’t know the actual time periods. I know that it was real to me in 2007. There was additional infidelity that took place in February of 2009 and on and on. The date of her accident, I believe she was with someone who was probably an inappropriate friend as well.
¶ 36 Mr. Gardner was then asked to confirm whether “these infidelities . . . led to the demise of the..
If a petition for modification of child custody or parent-time provisions of a court order is made and denied, the court shall order the petitioner to pay the reasonable attorney fees expended by the prevailing party in that action, if the court determines that the petition was without merit and not asserted or defended against in good faith.
(a) Commencement; service; answer. Except as provided in Utah Code Section 30-3-37, proceedings to modify a divorce decree or other final domestic relations order shall be commenced by filing a petition to modify. Service of the petition, or motion under Section 30-3-37, and summons upon the opposing party shall be in accordance with Rule 4. The responding party shall serve the answer within the time permitted by Rule 12.
Utah Family Law, LC | divorceutah.com | 801-466-9277
It is certainly understandable if one desires to divorce a spouse who has committed adultery. The law understands this as well, which is why adultery is grounds for divorce in every state in this country.
But neither the law nor the Judeo-Christian religions mandate divorce in the event of adultery. Even most areligious people agree that adultery does not necessitate divorce. Indeed, public policy, every religious creed I know of, and the mental health care community discourage divorce generally, even if there may be a “fault” basis for divorce. Why might that be?
Adultery will almost always shake the innocent spouse’s trust in the adulterer. Adultery can so deeply hurt and anger the innocent spouse as to make him or her feel that forgiveness is impossible.
Some adulterers are unrepentant. They are therefore impossible to trust. Worse, their promiscuity poses a literal threat to the health and life of the innocent spouse. Their chronic infidelity raises the realistic specter of abandonment of the innocent spouse and children, if there are any. Clearly, there are situations in which adultery may be reason enough for divorce.
Almost every divorce, however, will harm children. Even the end of a dysfunctional marriage leaves children feeling unmoored, betrayed, rejected, and insecure. Sometimes a divorce is necessary for the children’s immediate and long-term safety and well-being (both physical and emotional), even if it is painful and traumatic for them.
One of the incalculably priceless benefits of marriage is having a family because children help to strip a husband and wife of many vices they might not otherwise have chosen to give up. The choice to be a parent is a choice to make sacrifices that ultimately create—by an order of magnitude—a more meaningful, worthwhile life.
When you commit to being a good parent, you inherently commit to becoming a far better person generally. Committing to being a good parent necessarily requires committing to being a better spouse. These facts give new and deeper meaning to the phrase “staying together for the sake of the children.” If a husband and wife find it difficult to overcome the effects of adultery on themselves, they may discover that staying together for the sake of, for the love of, for the protection of and for the benefit of their children will reveal to them why and how they can and should repent, forgive, and recommit to each other.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Is sugar good for you, or bad for you? It depends upon the circumstances. An occasional slice of cake or pie is a safe and pleasant way to enjoy sugar. ‘Nothing wrong with that. Eating so much sugar that your teeth rot and you pack on 30 unneeded pounds is irresponsible and hazardous to your health. ‘Nothing good about that. Yes, you have the right to ruin your health with too much sugar, but that does not mean you have the right to expect everyone around you to endorse or accommodate your irresponsible lifestyle.
So is joint residential custody better or worse for the children? It depends on the joint residential custody circumstances. Assuming there’s nothing emotionally or psychologically off about a child, when both parents are fit (not abusive or neglectful and physically and psychologically able to care for children), loving and supportive, there to provide personal care and attention, have residences that are safe and hygienic, and can at least tolerate the exercise of joint custody with each other, joint residential custody is unquestionably best for children (the research is copious and only getting clearer). When one of the parents is unfit, disengaged, and lives in a pig sty and/or in his/her car, joint residential custody would clearly not be in a child’s best interest.
Parental rights are fundamental, God-given, human rights. But they are not a parent’s absolute inviolable rights. If a parent is not minimally fit to exercise custody of a child, the law provides that such a parent’s parental rights can be infringed, restricted, even terminated. This is why a court can award sole custody of children, if it finds that the parents are not both fit to exercise joint custody and/or if it finds that joint custody would not subserve the child’s best interest.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Nos. 20150577-CA and 20160236-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
Margaret S. Edwards, Attorney for Appellant
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
¶1 This case involves two appeals in the same domestic relations dispute. In the first appeal (the First Appeal), William Kirsling challenges several aspects of the amended decree entered in his divorce from Kristen Pulham. In the second appeal (the Second Appeal), Kirsling challenges the trial court’s denial of his petition to modify the divorce decree’s custody arrangement. We affirm the trial court’s decisions in both appeals.
The Trial and the Amended Decree
¶2 Pulham and Kirsling were married in 2008 and separated in 2010. The parties had one child (Child) born during the marriage. In June 2012, the trial court entered a bifurcated decree of divorce, reserving several issues for trial.
¶3 At a bench trial in 2014, the parties contested the issues of custody, child support, past-due child support, and unreimbursed child care expenses. Each party also alleged that the other party was in contempt of the court’s prior orders and should therefore face sanctions.
¶4 On Child’s custody, the trial court made detailed findings. Among other things, it found that Pulham had remarried, had a son with her new husband, and was living in Tooele, Utah. The court also found that Pulham had been the primary caregiver of Child since birth and that, at the time of trial, Pulham was unemployed and was acting as the full-time caregiver of her younger son and Child.
¶5 Regarding Kirsling, the court found that he was living in Taylorsville, Utah, with his girlfriend and her children, and that Kirsling’s older son from a previous marriage lived with Kirsling part-time. The court also found that Kirsling had resided in various places, including Brigham City, Utah, and Phoenix, Arizona, for lengthy periods after the parties separated. The court found that even though Kirsling’s “contact and visitation with [Child] ha[d] been inconsistent for much of that time,” his contact had “stabilized considerably” in the year leading up to trial.
¶6 Although Kirsling and Pulham agreed at trial that it would be in Child’s best interest if they shared joint physical and legal custody, they sharply disagreed about the details of that custody, including where Child should be enrolled in school and with whom she should primarily reside. A custody evaluator prepared a custody evaluation and testified about it at trial.
¶7 Kirsling requested a court order requiring Child to enroll in the school near his home in Taylorsville for three years, at which point Child would then transfer to the school near Pulham’s home for the latter half of elementary school. The court rejected Kirsling’s request, reasoning that his plan would require Child “to spend considerable time commuting by car between Taylorsville and Tooele”—amounting to “upwards of an hour each way, before school and after school”—and that it was not in Child’s best interest to do so merely to accommodate Kirsling’s preferred parenting plan. The court also reasoned that Kirsling’s plan would require Child to change elementary schools and that such a plan, which would put Child through “an unnecessary adjustment of surroundings, friends and routine,” was not in Child’s best interest.
¶8 In the November 2014 amended divorce decree (the Amended Decree), which followed the earlier bifurcated decree, the trial court awarded the parties joint physical and legal custody. The court also ordered that Pulham would be the primary custodial parent and would have the final say in parenting decisions for Child, including which school Child would attend.
¶9 As for parent-time, the court determined that a standard parent-time order, as anticipated under Utah Code section 30-3-35, did “not provide sufficient parent time” for Kirsling and was not in Child’s best interest. As a result, the court awarded Kirsling additional parent-time in a manner that avoided “creating the attendant travel time that would be inflicted upon [Child] by [Kirsling’s] proposed parenting plan.”
¶10 On future child support, the trial court found that it would be calculated based on Pulham’s monthly income of $30 and Kirsling’s monthly income of $4,580, “which are the stipulated monthly gross incomes” of the parties. Then, referencing the Utah Code and a custody worksheet, the court ordered Kirsling to pay Pulham $548 per month for child support.
¶11 On past-due child support, the trial court found that the evidence supported Pulham’s claim that Kirsling had an outstanding obligation for a period before 2012. The court also found that Pulham incurred fees paid to the Office of Recovery Services (ORS) due to Kirsling’s “failure to timely pay his child support obligation.” Because Kirsling had not been “consistently responsible for payments until ORS intervened,” the court agreed with Pulham that Kirsling should reimburse her for the ORS fees. Accordingly, the court ordered Kirsling to pay Pulham for past-due child support and ORS fees.
¶12 On unreimbursed child care expenses, the trial court found that Pulham had shown that Kirsling had not paid his share of some expenses. The court ordered Kirsling to pay Pulham those expenses.
¶13 Finally, on the allegations of contempt of court, the trial court found that “insufficient evidence was presented at trial to warrant sanctions for either party.” Thus, the court dismissed all charges of contempt.
The Motion for a New Trial
¶14 Kirsling moved for a new trial pursuant to rule 59(a) of the Utah Rules of Civil Procedure. The motion was accompanied by an unsworn document signed by his attorney that purported to be Kirsling’s affidavit. As relevant here, Kirsling challenged the trial court’s decisions regarding child support and custody as well as the amounts Kirsling owed to Pulham for past-due child support and child care expenses.
¶15 With respect to the amounts owed to Pulham for past-due child support and child care expenses, Kirsling contended that, under rule 59(a)(4), he had newly discovered evidence that he could not have produced at trial. Referring to Pulham’s testimony that she did not receive a particular payment, he asserted that post-trial he was “able to obtain a photocopy of the cashed money order that was presented to [Pulham’s] counsel as settlement for the financial issues of the case” and that the new information affected the amounts he owed Pulham.
¶16 In denying the motion, the trial court began by characterizing the purported affidavit as “an argument by [Kirsling’s] counsel, complaining generally of the failure of the Court to find in [Kirsling’s] favor.” The court then rejected Kirsling’s newly discovered evidence argument, explaining that Kirsling had not established “whether or why he was unable to obtain this evidence prior to trial” and also had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”
¶17 Kirsling raised another argument under rule 59(a)(6), attacking the court’s determination that Pulham’s gross monthly income was $30 for child support purposes. Kirsling argued that the evidence was insufficient because the court did “not show why Ms. Pulham’s income was not calculated” based on her employment potential and probable earnings pursuant to a statute governing the imputation of income. Kirsling asserted this same argument as an error of law under rule 59(a)(7).
¶18 The court rejected Kirsling’s arguments. It explained that Utah Code section 78B-12-203(7) dictates the circumstances under which the trial court may impute income and gives discretion to the court to impute under those certain circumstances. The court then explained that it “did not impute income to [Pulham]” and that the application of this statute was “not the basis for a complaint of ‘insufficient evidence’” under rule 59(a)(6). Similarly, the court concluded that, in relation to rule 59(a)(7), it had not committed an error of law, because it had “exercised its discretion in determining not to impute income to [Pulham], something the statute authorizes it to do.”
¶19 Concerning custody, Kirsling contended that, under rule 59(a)(7), the trial court erred when it did not follow the recommendations of the custody evaluator. In particular, he stated that the court failed to provide “a detailed and clear finding” explaining why it did not adopt the custody evaluator’s recommendation. The court rejected this argument as well, maintaining that it had “articulated the reasons for its decision regarding custody.”
¶20 The trial court denied the motion for a new trial on June 17, 2015. Kirsling filed a timely notice of appeal, giving rise to the First Appeal. In his notice of appeal, Kirsling stated that he thereby appealed “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and that the appeal was “taken from such parts of the judgment as follow”: Paragraph 3 regarding child support calculation; Paragraph 4 regarding child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt.
The Petition to Modify the Amended Decree
¶21 On the same day he filed the First Appeal, Kirsling petitioned the trial court for a modification of the Amended Decree. Specifically, Kirsling asserted that “[a] significant change of circumstances has occurred as a result of [his] recent relocation to Stansbury Park, Utah, which is located approximately 15 minutes of driving time from his home to the home of [Pulham].” Kirsling further asserted that at the time the trial court entered the Amended Decree he lived approximately forty-five minutes away from Pulham and that “[t]his distance affected the Court’s awarding of parent time for both the overnight schedules, school choices and the midweek parent time determinations.” Because the long “commute time no longer exist[ed],” Kirsling requested that the court change the schedule to “fifty-fifty,” essentially asking to have Child spend every other week with him.
¶22 Pulham responded by filing a motion to dismiss the petition to modify. Although she did not dispute that Kirsling had relocated, she contended that Kirsling’s move from Taylorsville to Stansbury Park did “not represent a change of circumstances sufficient to modify the controlling order,” because it did not affect her “parenting ability” and the “functioning of the current custodial relationship.”
¶23 A court commissioner heard the matter and recommended that the trial court deny Pulham’s motion to dismiss. Pulham objected to that recommendation, and the trial court ultimately resolved the petition to modify on its merits. The court observed that it had “considered the distance the minor child would be subjected to traveling” when entering its custody and parent-time orders in the Amended Decree, but it expressed concern that Kirsling’s “stop” in Stansbury Park would be “brief,” in light of his “somewhat migratory history.” The court also expressed concern that, “given the timing of the move and the petition itself, [Kirsling] made this move solely to create a change in circumstances in an effort to succeed in modifying the decree.”
¶24 Although Kirsling’s relocation closer to Pulham “benefits
all parties, including the minor child,” the court concluded that the “move, in and of itself, is wholly insufficient to create a sufficient change of circumstances to warrant reconsideration” of the Amended Decree, and it denied Kirsling’s petition to modify. Kirsling filed another notice of appeal, which triggered the Second Appeal.
I. The First Appeal
¶25 Kirsling raises three issues in the First Appeal. First, he contends that the trial court erred in calculating “Pulham’s income at $30 per month for child support purposes.” Second, he contends that it erred in denying his motion for a new trial on his claim of newly discovered evidence related to child care expenses. Third, he contends that the trial court erred in deviating “from the recommendations of the court-appointed custody evaluator without making any specific findings on the record as to its deviation.” Before we reach the merits of these contentions, however, we must consider whether Kirsling’s notice of appeal vested this court with jurisdiction to consider and address these issues.
A. The Scope of This Court’s Jurisdiction
¶26 As a threshold matter, we first consider Pulham’s argument that this court lacks jurisdiction to review certain issues on appeal. Pulham argues that “Kirsling’s notice of appeal invokes this Court’s jurisdiction over only some of the issues he has argued in his brief.” According to Pulham, “Kirsling’s notice of appeal references only the decisions in the Amended Decree relating to child support, a monetary judgment, and the dismissal of contempt charges,” and “[b]ecause [his] notice of appeal does not reference the district court’s custody award or the . . . denial of [his] motion for a new trial, this Court lacks appellate jurisdiction over issues related to those decisions.” Kirsling counters that a notice of appeal’s “designation of the specific parts [of an order or judgment] does not waive the appeal of the whole order or judgment” and that therefore this court “has jurisdiction over all of the issues raised on appeal . . . , as well as the issues concerning the post-trial motion” for a new trial.
¶27 “Whether appellate jurisdiction exists is a question of law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 (quotation simplified). Likewise, we “determine whether a Notice of Appeal is adequate to grant this court jurisdiction as a matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 P.3d 1167 (quotation simplified).
¶28 The Utah Supreme Court has “emphasized that the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case . . . [because the opposing party] is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quotation simplified). Rule 3(d) of the Utah Rules of Appellate Procedure dictates the content of a notice of appeal: “The notice of appeal . . . shall designate the judgment or order, or part thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a result, an “order not identified in the notice of appeal falls beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 106.
¶29 “[W]here the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (quotation simplified). Put another way, “[w]here the appealing party’s intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient.” Id. ¶ 15.
¶30 As noted above, rule 3(d) requires that the notice of appeal “designate the judgment or order, or part thereof, appealed from.” Utah R. App. P. 3(d) (emphasis added). If an appellant has adequately designated the judgment or order appealed from, we do not read the rule’s language as also requiring the appellant to designate the “part thereof.” See id. But where an appellant chooses to identify the specific parts of a judgment subject to the appeal and gives notice of its intent to appeal only those parts of a particular judgment, our jurisdiction is limited by that representation. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106. In other words, “our jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that the language of a notice of appeal limits an appellate court’s jurisdiction to those issues expressly identified in the notice); see also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” (emphasis added)).
¶31 Here, Kirsling’s notice of appeal for the First Appeal states that he appeals “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and specifies that the appeal “is taken from such parts of the judgment as follow”:
Paragraph 3 regarding child support calculation;
Paragraph 4 wherein Mr. Kirsling was ordered to pay . . . child support and ORS fees and . . . child care expenses; and
Paragraph 8 wherein all charges of Contempt are dismissed.
The Amended Decree was entered on November 4, 2014. The order denying Kirsling’s motion for a new trial was entered on June 17, 2015. When the notice of appeal is considered in context, its reference to “the final Decree of Divorce” manifests Kirsling’s intent to appeal from the Amended Decree, and its reference to an order “entered in this matter on June 17, 2015,” manifests his intent to appeal from the order denying his motion for a new trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 (interpreting a notice of appeal as an appeal from a January 15 order despite its reference to a nonexistent January 11 order because the appellant’s intent to appeal the former order was evident from the context). We thus conclude that Kirsling’s notice of appeal sufficiently designates the Amended Decree and the order denying the motion for a new trial as “the judgment[s] or order[s] . . . appealed from.” Utah R. App. P. 3(d).
¶32 But the notice of appeal does more; it also designates the “part[s] thereof” to be appealed. See id. It does so by stating that the appeal “is taken from such parts of the judgment as follow”: Paragraph 3 regarding child support; Paragraph 4 regarding past-due child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt. Because the Amended Decree has paragraph numbers and subject matters that correspond to those mentioned in the notice of appeal, we read the notice of appeal’s references to specific paragraphs as referring to Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe the notice of appeal as manifesting Kirsling’s intent to contest on appeal only the issues of child support, past-due child support, ORS fees, child care expenses, and contempt. In contrast, the notice of appeal does not convey Kirsling’s intent to appeal issues related to the custody evaluation or the parenting plan— issues that were resolved in other paragraphs of the Amended Decree that are not cited in the notice of appeal. By expressly identifying the parts of the trial court’s ruling from which the appeal was taken, Kirsling manifested an intent not to appeal the other parts of the trial court’s Amended Decree and its related order denying his post-trial motion.
¶33 In sum, because Kirsling’s notice of appeal identifies the specific parts of the trial court’s Amended Decree that he contests on appeal, our jurisdiction is limited to those particular parts. To be precise, this court has jurisdiction to review issues related to “the child support calculation”; the order directing Kirsling to pay ORS fees, past-due child support, and child care expenses; and the dismissal of the contempt charges. The issues in his opening brief that are not identified in his notice of appeal—relating to the custody evaluation and the parenting plan—are outside this court’s jurisdiction. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had no jurisdiction to review a consent order, where that order was not mentioned in the notice of appeal and where that order was a distinct final judgment from another final judgment that was properly identified in the notice of appeal). Having identified those issues that are properly before this court in the First Appeal, we now address their merits.
B. Calculation of Income for Child Support Purposes
¶34 Kirsling contends that the trial court erroneously calculated Pulham’s monthly income for child support purposes as $30, asserting that “[e]ither the $30 per month finding regarding Pulham’s income was supported by insufficient evidence, or the trial court erroneously imputed income to her absent proper procedure.” In his view, Pulham’s income should have been imputed at a much higher amount. He thus asserts that the trial court’s error resulted in “an excessive award of child support to Pulham” and asks us to reverse and remand for the trial court to “determine the income based on [Pulham’s] historical income.”
¶35 Because trial courts have broad discretion to award child support, we will not disturb such a decision “absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified). Likewise, we review the trial court’s denial of Kirsling’s motion for a new trial for abuse of discretion. See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set aside the trial court’s factual findings only if they are clearly erroneous. 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 definite and firm conviction that a mistake has been made.” (quotation simplified)).
¶36 We begin with Kirsling’s contention that the trial court’s finding regarding Pulham’s income is clearly erroneous because it lacks evidentiary support. On this point, we agree that no evidence adduced at trial supported the conclusion that, at the time of trial, Pulham had a monthly income of $30. It was undisputed that Pulham was unemployed and cared for her young children full-time. The trial court, however, did not purport to base its determination of income on the testimony or other evidence at trial. Rather, the court twice stated that its income determination was based on the parties’ “stipulated monthly gross incomes.”
¶37 Kirsling does not acknowledge the trial court’s explanation that its income determination was not based on evidence but on a stipulation by the parties. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8,..
Not many. In fact, in many jurisdictions this has already occurred (many states have, in the past few years, passed laws that presume joint equal custody is in the child’s best interest). In other jurisdictions it’s just around the corner. So legislation is changed or changing fast.
In Utah (where I practice divorce and family law), there have been two developments that illustrate this point. Utah Code § 30-3-10 provides:
“(3)There is a rebuttable presumption that joint legal custody, as defined in Section 30-3-10.1, is in the best interest of the child[.]”
“(8) This section establishes neither a preference nor a presumption for or against joint physical custody or sole physical custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.”
Section 30-3-35.1 of the Utah Code provides for an “optional schedule” for parent-time for children 5 to 18 years of age that exceeds the long, long-standing “minimum parent-time” schedule of every other weekend and three hours mid-week with this possibility:
“(1) The optional parent-time schedule in this section applies to a child 5 to 18 years of age. This schedule is 145 overnights.”
Some old judges don’t enforce these new(er) laws because they still subscribe to the sexist idea that men can’t be as good a parent as a woman. But as these older judges retire, the new judges who replace them are often children of divorce who resented the destruction of their father-child relationship being damaged or destroyed by sexist courts and by vengeful ex-wives who restricted and marginalized contact with their fathers.
If you are a fit parent (meaning you are not abusing or neglecting your children) who wants joint custody and who has a work schedule conducive to spending equal or near-equal time with your children, don’t give up on the prospect of a joint legal and joint physical custody award. It’s easier to get than ever before.
Utah Family Law, LC | divorceutah.com | 801-466-9277
 Several U.S. jurisdictions have (depending upon how they are construed and followed) laws that are joint custody-friendly (whether that be joint legal and/or joint physical custody), including: Alaska, Florida, District of Columbia, Idaho, Illinois, Iowa, Louisiana, Massachusetts, Minnesota, New Mexico, North Dakota, South Dakota, Texas, Utah
I’m amazed at the number of people who believe, from what fictitious TV lawyers “accomplish,” that if the lawyers just try hard enough, do enough research, pound the pavement tenaciously, any case can be won. No. Some clients plainly do not have the facts and the law on their side. Sometimes it’s glaringly obvious. They deserve to lose. They will lose.
A good lawyer tells a client with this kind of case not to litigate that case, but instead to settle or try to make the best of a bad situation. A good lawyer does not give this kind of client false hope. A good lawyer does not try to create a silk purse out of a sow’s ear by lying in representing the case to the judge and jury in a false light. A good lawyer does not charge his client to do a bunch of unnecessary work that will be of no benefit to the client.
Lawyer shows on TV portray lawyers as wizards. People who watch TV and then later get into legal trouble are desperate for hope. They want to believe that lawyers have magic powers to deliver them from any situation. And so many of them do believe this. They really do believe it. It’s hard for attorneys to be the bearers of bad news generally, but even harder in these circumstances. “Just believe” cannot transform a lousy case into a good one. Good lawyers will bear the bad news regardless. You can’t win every argument. Some cases are losers through and through. Bad attorneys prefer to feed false hope and make a buck or two in the process, rather than confront clients with the disappointing truth.
Utah Family Law, LC | divorceutah.com | 801-466-9277
 While a positive attitude is a virtue and a key to a happy life, “just believe” is a cheap and appealing way to avoid confronting reality in legal matters.
I have not been the victim of domestic violence or abuse, but I have had some clients who are. If you have a good, honest, and responsive police force in your jurisdiction, coupled with the court that is willing to issue protective orders AND enforce them, then police and courts can help.
Regardless of whether the police and courts in your jurisdiction do or not take domestic violence and abuse seriously, you should never rely upon law enforcement or the court’s to protect your life and physical safety. You and you and you alone are best equipped to protect your physical safety and life.
If you are the victim of domestic violence and/or abuse, report it as quickly as you can after it occurs. If you are threatened with domestic violence, report that too. and if you have any written or recorded evidence of those threats, make sure you share that with law enforcement and with the court. Not only can you report violence or threats of violence, you can take action to protect yourself from future violence by requesting a protective order or civil stalking injunction.
Utah Family Law, LC | divorceutah.com | 801-466-9277