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Paulsen v. Paulsen

Court of Appeals of Utah

February 1, 2018

Holly Paulsen, Appellee,
Keith Paulsen, Appellant.

         Second District Court, Farmington Department The Honorable Robert J. Dale No. 034701322

          Matt G. Wadsworth, Attorney for Appellant

          Holly Paulsen, Appellee Pro Se

          Judge Kate A. Toomey authored this Opinion, in which Judges David N. Mortensen and Diana Hagen concurred.

          TOOMEY, Judge

         ¶1 Keith Paulsen appeals the district court's denial of his motion for summary judgment in connection with his petition to modify the parties' divorce decree to decrease his monthly alimony obligation. He also challenges the court's findings entered after trial on the petition to modify. We affirm in part and vacate in part and remand.

         ¶2 The parties obtained a bifurcated divorce decree in November 2004, reserving several issues for trial. Following trial in late 2005, the district court entered a second decree in which it awarded Keith[1] legal and physical custody of the parties' five children and ordered him to pay Holly $1, 408 per month in alimony with an offset of $408 for child support, leaving a net alimony payment of $1, 000 per month. The court determined that Holly was underemployed and imputed to her income of $1, 850 per month. The court found Holly's monthly expenses to be $2, 949 per month.

         ¶3 In 2013, Keith petitioned to modify the decree, asking the district court to terminate his alimony obligation to Holly. The basis for Keith's petition was Holly's alleged ability to earn no less than $3, 467 per month and a reduction in her monthly expenses by virtue of nearly having satisfied her mortgage. Keith's petition also stated that his alimony obligation was $1, 000 per month.

         ¶4 Holly answered Keith's petition, denying that she was capable of earning $3, 467 per month. Holly admitted she was close to satisfying her mortgage "but denie[d] that she [did] not have a housing expense." Holly noted that her interpretation of the decree's alimony award differed from Keith's: "the alimony was actually $1408.00 with a child support off set of $408.00 leaving a net of $1000.00. Now that all of the children are emancipated the alimony amount is $1408.00." She also argued that Keith "has failed to take into account the Jones v. Jones factors which include the current living expenses of [Holly] and [Keith's] ability to assist in those expenses."

         ¶5 In October 2014, Keith filed a motion for summary judgment "on the broad issue of alimony." In his supporting memorandum, he stated that, according to Holly's paystubs, "she now makes $16.00 per hour or $33, 280.00 yearly. This equates to $2, 773.33 per month gross or $2, 357.33 net per month." He also alleged that Holly told him that "she now makes over $3, 200 per month." As to Holly's expenses, he merely cited the district court's finding at the time alimony was initially set that her monthly expenses were $2, 949 per month. Keith also pointed out that, at that time, Holly had yet to file a completed financial declaration. Keith did not include any facts regarding his financial situation. In his memorandum, he argued a substantial material change in circumstances had occurred because Holly's income had increased and she was close to paying off her mortgage. In addition, he argued that his alimony obligation should be decreased based on several expenses he thought should not have been included when the court made its initial alimony determination.

         ¶6 In response to Keith's motion for summary judgment, Holly filed a cross-motion for summary judgment and a combined memorandum supporting her cross-motion for summary judgment and opposing Keith's motion for summary judgment. The memorandum argued Keith had "failed to demonstrate a substantial change in circumstances not contemplated at the time the Decree was entered, " because "[t]he amount and length of the mortgage was understood by the trial court at the time" the decree of divorce was entered. Holly did not dispute the facts Keith alleged in his motion for summary judgment.

         ¶7 Keith responded, noting that his motion's statement of facts "were entirely unrebutted and therefore must be deemed admitted as a matter of law." Accordingly, he argued, Holly "has no further need of alimony." Keith further argued that the divorce decree was "'bereft of any reference to the changed circumstance at issue'" and therefore was "'not contemplated in the original divorce decree.'" (Quoting Wall v. Wall, 2007 UT App 61, ¶ 12, 157 P.3d 341.)

         ¶8 The district court heard these matters in January 2015 and denied both motions for summary judgment. In explaining the basis for denying Keith's motion, the court stated, "I simply do not have enough facts at this point and it's not correct that as a matter of law that I can determine this . . . . I don't have enough, in [Keith's] motion for instance, to even show me what the expenses of [Holly] are." The court reiterated that it did not have sufficient facts and that it was not simply a matter of Holly's failure to respond to Keith's motion for summary judgment. The court continued, "I just am not in a position to be able to rule on a motion for summary judgment and say as a matter of law, that in fact, there ought to be a modification of the alimony award."

         ¶9 Before trial, Keith and Holly filed several financial declarations, updating their declarations as necessary. In Holly's January 2015 declaration, she declared that her gross income was $2, 650 per month (including $50 per month in support from her adult children), that her net income was $2, 397.76, and that her expenses were $4, 782 per month. Notably, her expenses did not include a mortgage payment, because she had paid off her house. In July 2015, Holly filed her final updated financial declaration. The updated declaration reflected that her gross income was $2, 750 per month, an increase of $100 due to an increase in the declared support from her adult children, and that her net income was $2, 505.19 per month. Her claimed expenses decreased to $4, 675 per month. Holly arrived at this number after adding some expenses and deducting others. She added the following monthly expenses: $500 for a home equity line of credit she had opened, an additional $300 for attorney fees, and $200 for contributions to her daughter's church ...

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