District Court, Farmington Department The Honorable Robert J.
Dale No. 034701322
G. Wadsworth, Attorney for Appellant
Paulsen, Appellee Pro Se
Kate A. Toomey authored this Opinion, in which Judges David
N. Mortensen and Diana Hagen concurred.
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.
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 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.
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.
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
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.
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.
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.)
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."
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 ...