Paul R. Sauer II, Appellant,
Pauline L. Sauer, Appellee.
District Court, Salt Lake Department The Honorable Su J. Chon
Maddox, Attorney for Appellant.
Pauline L. Sauer, Appellee Pro Se.
Michele M. Christiansen authored this Opinion, in which
Judges J. Frederic Voros Jr. and Jill M. Pohlman concurred.
Paul R. Sauer II and Pauline L. Sauer married in 1987 and
separated in 2004. Paul filed for divorce in 2013. After a
bench trial, the court issued a decree of divorce in November
2015, in which it awarded Pauline half of Paul's
retirement benefits and alimony of $576 per month and ordered
Pauline to reimburse Paul approximately $1, 438 for moving
expenses and utility bills. Paul appeals, contending that the
trial court abused its discretion in weighing the evidence,
by imputing Pauline's needs, and by entering conclusions
not supported by the evidence. We affirm.
Paul first contends that the trial court "abused its
discretion when it stated that [he] failed to meet his burden
of proof when offering evidence relating to debt and property
distribution." Paul notes that the standard of proof
applicable to civil actions is the preponderance of the
evidence. See Morris v. Farmers Home Mutual Ins.
Co., 500 P.2d 505, 507 (Utah 1972). Paul then asserts
that because he "provided copious amounts of evidence in
testimony and exhibits" that "went un-refuted by
[Pauline], " the court abused its discretion when it
determined that he had not met his burden of proof. In
essence, Paul's argument is that because he presented
uncontested evidence regarding the value of certain items,
the trial court was required to find that evidence credible.
At trial, Paul entered into evidence a list of items he
claimed Pauline had lost. The list included his estimates as
to the value of each item. Pauline denied losing the items
and did not present competing evidence of those items'
The court rejected Paul's estimates of the values of the
items because he "did not testify that he had any
experience in evaluation or training in that area." But
the court also found that Paul had not demonstrated that
Pauline was responsible for losing the items. Specifically,
the court explained it was troubled that, although Paul
"voluntarily stored" at the homes of acquaintances
some of the items that later went missing, Paul nevertheless
sought "to hold [Pauline] responsible for the loss of
all of the personal property" on the list. The court
also noted that Paul had never reported the loss of any
property to law enforcement. The court ultimately found
Paul's testimony "not credible as to why he would
voluntarily store his property at other people's homes
and then blame the resulting loss on [Pauline]."
Thus, the record shows that the trial court considered
testimony by both Paul and Pauline before finding that Paul
had failed to demonstrate that Pauline caused the loss of the
listed items. Paul does not challenge that finding. Because
the court rejected Paul's claim that Pauline was
responsible for the loss of the items, it is irrelevant
whether the court correctly valued them.
Paul also asserts that the court's "pattern of
disbelief" regarding his testimony and the evidence he
proffered "is a clear abuse of discretion." But we
give great deference to a trial court's determinations of
credibility "based on the presumption that the trial
judge, having personally observed the quality of the
evidence, the tenor of the proceedings, and the demeanor of
the parties, is in a better position to perceive the
subtleties at issue than we can looking only at the cold
record." See State v. Calliham, 2002 UT 87,
¶ 20, 57 P.3d 220. Consequently, in "all actions
tried upon the facts without a jury, findings of fact shall
not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge
the credibility of the witnesses." Hale v. Big H
Constr. Inc., 2012 UT App 283, ¶ 9, 288 P.3d 1046
(quoting Utah R. Civ. P. 52(a) (2012)) (brackets, ellipses,
and internal quotation marks omitted). A court may well find
that several pieces of evidence presented by a single party
are not credible; such a "pattern of disbelief"
does not, standing alone, prove clear error or otherwise
constitute grounds for withdrawing the due regard we owe to
the trial court. And, here, the trial court was not required
to believe Paul simply because he presented more evidence
than Pauline or because Pauline did not directly contradict
his proffered testimony. See, e.g., Anderson v.
State Farm Fire & Cas. Co., 583 P.2d 101, 104 (Utah
1978) ("The testimony of a party . . . is not
conclusive, even if it is not contradicted . . . .
[The party's] testimony is to be given such weight and
credibility as the trier of fact finds reasonable under the
circumstances." (emphasis added)); Fullmer v.
Fullmer, 2015 UT App 60, ¶ 25, 347 P.3d 14
("Determinations regarding the weight to be given to the
testimony of witnesses, including expert witnesses, are
within the province of the finder of fact, and we will not
second guess a court's decisions about evidentiary weight
and credibility if there is a reasonable basis in the record
to support them." (brackets, citation, and internal
quotation marks omitted)).
Because the trial court found that Paul failed to prove that
Pauline lost the items, his complaint that the trial court
improperly rejected his valuation of those items is
irrelevant. Even if the trial court had found that Pauline
lost the items, Paul has failed to demonstrate that the
court's credibility determination was clearly erroneous,
and the nature of appellate review would require us to defer
to that credibility determination. See id.; see
also Utah R. Civ. P. 52(a)(4) ("Findings of fact .
. . must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court's
opportunity to judge the credibility of the
witnesses."); Dahl v. Dahl, 2015 UT 79, ¶
121 (same, in the context of a marital property
Paul next contends that the trial court "abused its
discretion when it awarded alimony, mistakenly relying on
Dahl v. Dahl to reject the financial statement
figures submitted by [Pauline] and impute its own on her
behalf." Specifically, Paul argues that the trial court
was bound by Pauline's testimony, or lack thereof,
regarding Pauline's needs and her living expenses related
to her housing costs. Paul asserts that, whereas
"Dahl explicitly states that courts may impute
figures [only] when there is insufficient evidence, "
"[t]here is no lack of evidence in this case."
Dahl did not hold, as Paul claims, that imputing an
amount for an alimony factor is improper whenever evidence
pertaining to that factor has been presented. Rather,
Dahl instructs that the court may impute a
reasonable amount for an alimony factor when no
credible evidence regarding that factor has been
presented. See Dahl, 2015 UT 79, ¶¶ 115-16
(noting that "there [was] insufficient evidence of one
of the statutory alimony factors" due to a party's
"failure to provide credible evidence of her financial
need, " and thus that the trial court could impute
figures). When a party obviously underestimates (as
here) or overestimates (as is more common) his or her living
expenses, the trial court is not limited to ...