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Gerwe v. Gerwe

Court of Appeals of Utah

April 26, 2018

Shannon Olivia Gerwe, Appellee,
v.
Brian Scott Gerwe, Appellant.

          Second District Court, Farmington Department The Honorable Thomas L. Kay No. 144700123

          Andrew G. Deiss, Brent A. Orozco, and Diana F. Bradley, Attorneys for Appellant

          Russell Yauney, Attorney for Appellee

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

          HAGEN, Judge

         ¶1 Brian Scott Gerwe (Husband) challenges the district court's order setting aside a postnuptial agreement (the Postnuptial Agreement) Husband entered into with Shannon Olivia Gerwe (Wife) as well as various findings of fact and conclusions of law associated with the court's divorce decree. We affirm.

         BACKGROUND

         ¶2 In January 2014, Wife petitioned for divorce from Husband. On June 25, 2014, the parties entered into the Postnuptial Agreement, which divided the parties' assets and set forth their financial obligations. In August 2014, Wife moved the court to set aside the Postnuptial Agreement on grounds that Husband fraudulently induced her to sign it.

         ¶3 Following an evidentiary hearing, the court granted Wife's motion. It found that Husband had induced Wife to sign the Postnuptial Agreement in hopes of reconciliation when Husband "had no intent to reconcile with" Wife. This was evidenced by (1) the "shortness of time between the signing of the document and the request to move forward with the divorce, " (2) the "text messages from [Husband] sent to [Wife] almost immediately after the document was signed, " and (3) the fact that the "six factors [Husband] cited to about why he did not want to get back together, were not valid, and were only used as an attempt to justify his actions."

         ¶4 After a bench trial, the district court entered findings of fact and conclusions of law in support of the divorce decree. Relevant to this appeal, the court found that: (1) Wife was entitled to half the marital funds in a brokerage account but was not responsible for a loan Husband claimed had been used to fund the account; (2) the total value of personal property remaining in Husband's possession was $48, 000, and half of that value should be awarded to Wife; and (3) based on Husband's current gross income is $9, 373 per month, he was required to pay Wife child support in the amount of $671 per month and alimony in the amount of $1, 000 per month.

         ¶5 Husband now appeals the court's order to set aside the Postnuptial Agreement as well as various findings of fact and conclusions of law associated with the divorce decree.

         ISSUES AND STANDARDS OF REVIEW

         ¶6 Husband raises four issues on appeal. First, Husband argues that the district court failed to utilize the "clear and convincing" evidentiary standard when it set aside the Postnuptial Agreement and failed to make sufficient findings on the essential elements of fraudulent inducement. Husband acknowledges that he did not raise this issue below and would normally be barred from asserting it on appeal. He asks this court to reach the merits of his argument under the plain error exception to the preservation rule.[1] "The party seeking the benefit of the plain error exception must demonstrate that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome" for the appellant. Meadow Valley Contractors, Inc. v. State Dep't of Transpo., 2011 UT 35, ¶ 17, 266 P.3d 671 (quotation simplified). To the extent Husband challenges the sufficiency of the evidence supporting a finding of fraudulent inducement, "we will not set aside a [district] court's factual findings 'unless clearly erroneous, ' giving 'due regard to the [district] court's opportunity to judge the credibility of the witnesses.'" Shuman v. Shuman, 2017 UT App 192, ¶ 3, 406 P.3d 258 (quoting Utah R. Civ. P. 52(a)(4)).

         ¶7 Second, Husband contends that the district court erred when it awarded each party half the marital funds in the brokerage account but allocated to him the entirety of a loan he claimed was used to fund the account. "In a divorce action, there is no fixed formula upon which to determine a division of debts. However, such allocation must be based upon adequate factual findings which ruling we will not disturb absent an abuse of discretion." Rehn v. Rehn, 1999 UT App 41, ¶ 19, 974 P.2d 306 (quotation simplified).

         ¶8 Third, Husband contends that the district court abused its discretion in distributing the value of the parties' personal property. "[D]istrict courts have considerable discretion concerning property distribution in a divorce . . . [and] we will uphold the decision of the district court . . . unless a clear and prejudicial abuse of discretion is demonstrated." Dahl v. Dahl, 2015 UT 79, ¶ 119 (quotation simplified).

         ¶9 Finally, Husband contends that the district court abused its discretion by failing to calculate alimony and child support based on his projected salary. A district court's award of alimony is reviewed for abuse of discretion. ...


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