District Court, Farmington Department The Honorable Thomas L.
Kay No. 144700123
G. Deiss, Brent A. Orozco, and Diana F. Bradley, Attorneys
Russell Yauney, Attorney for Appellee
Diana Hagen authored this Opinion, in which Judges Kate A.
Toomey and David N. Mortensen concurred.
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.
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.
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."
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.
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.
AND STANDARDS OF REVIEW
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. "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.
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
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).
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.