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Hartvigsen v. Hartvigsen

Court of Appeals of Utah

December 28, 2018

Danielle Marie Hartvigsen, Appellant,
Richard Myers Hartvigsen, Appellee.

          Fourth District Court, Provo Department The Honorable Lynn W. Davis No. 064402132

          Danielle Marie Hartvigsen, Appellant Pro Se. [1]

          Richard Myers Hartvigsen, Appellee Pro Se.

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.



         ¶1 This is an appeal from a district court's division of property and award of alimony in the aftermath of a contentious divorce between Danielle Marie Hartvigsen and Richard Myers Hartvigsen.[2] Danielle contends that the court abused its discretion when it imputed income to her, declined to accept her claimed expenses at face value, and credited Richard's unrebutted testimony about his intent to convey real property to himself and Danielle as joint tenants. Danielle also contends that she was denied due process. We affirm.


         ¶2 Danielle and Richard married in 1995 and separated in 2005. Danielle filed for divorce in 2006, and in 2007 the district court entered a bifurcated decree of divorce, granting the divorce but reserving all other issues for later decision. After extensive litigation, a trial was held in 2012, and a supplemental decree of divorce was entered awarding Danielle a total property award of more than $1 million and alimony of $1, 000 per month. Danielle filed several post-trial motions, including a motion for new trial which were denied in December 2015. Danielle appeals.


         ¶3 Danielle first argues that the district court's alimony award was insufficient because the court exceeded its discretion by imputing income to her and in assessing her needs. We "review a district court's alimony determination for an abuse of discretion" and will not disturb its alimony ruling "as long as the court exercises its discretion within the bounds and under the standards [set by Utah appellate courts] and has supported its decision with adequate findings and conclusions." Dahl v. Dahl, 2015 UT 79, ¶ 84 (quotation simplified).

         ¶4 Danielle next argues that because Richard transferred a home that he purchased before marriage to the couple as joint tenants, the district court erred in determining that the home should be considered Richard's separate property. "Generally, district courts have considerable discretion concerning property distribution in a divorce proceeding and their determinations enjoy a presumption of validity." Id. ¶ 119 (quotation simplified). Accordingly, we will reverse only when "a clear and prejudicial abuse of discretion is demonstrated." Id. (quotation simplified). In reviewing the district court's decision, "we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous, and we give due regard to the district court's superior position from which to judge the credibility of witnesses." Id. ¶ 121.

         ¶5 Finally, Danielle asserts that the district court erred in refusing to grant her motion for new trial because misstatements by Richard in the pretrial phase precluded her from obtaining funds necessary to hire an attorney and resulted in a denial of due process. "Generally, we afford trial judges wide latitude in granting or denying rule 59 motions . . . . Consequently, we generally disturb a trial court's grant or denial of a rule 59 motion only if it constitutes an abuse of discretion." Sanpete Am., LLC v. Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. Furthermore, we will not reverse a denial of a motion for new trial unless the appellant can demonstrate a reasonable likelihood that the outcome would have been different in the absence of the alleged error. See Pullham v. Kirsling, 2018 UT App 65, ¶ 38, 427 P.3d 261.


         I. Alimony

         ¶6 Danielle first asserts that the district court's alimony award should be reversed because the court abused its discretion in imputing income to her and in calculating her needs.[3] However, in light of the supporting evidence and the district court's articulated findings, Danielle's various arguments fail to convince us that the court abused its discretion.

         A. Imputation of Income

         ¶7 Danielle first contends that "imputing income to [her] as a practicing attorney was an abuse of discretion" because she "had not worked as an attorney for nearly 19 years" and because "there was no competent evidence that a person with her experience could obtain employment as an attorney."

         ¶8 In calculating an alimony award, a court must consider, among other things, the recipient's ability to produce income. See Utah Code Ann. § 30-3-5(8)(a)(ii) (LexisNexis Supp. 2010)[4]. When an individual "has no recent work history or [his or her] occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week." See id. § 78B-12-203(7)(c) (LexisNexis 2012). The court may impute greater income upon entering "specific findings of fact as to the evidentiary basis for the imputation." Id. (governing the imputation of income for child support purposes).[5] Such imputation "shall be based upon employment potential and probable earnings as derived from employment opportunities, work history, occupation qualifications, and prevailing earnings for persons of similar backgrounds in the community, or the median earning for persons in the same occupation in the same geographical area as found in the statistics maintained by the Bureau of Labor Statistics." Id. § 78B-12-203(7)(b).

         ¶9 The court heard extensive evidence related to Danielle's ability to produce income, including her education and the range of potential salaries for individuals with similar educational achievements. Danielle earned a juris doctor from Stanford Law School in 1988 and a master's degree in wildlife biology from Brigham Young University in 1996. She received scholarships for both her legal and wildlife biology education. Danielle was admitted to the Utah State Bar in 1990 and worked at two law firms immediately after that. Her employment at the later firm was terminated in 1993.

         ¶10 A vocational expert retained by Richard testified that there were "260 annual openings for attorneys in the state of Utah metro area"[6] and that the entry-level annual salary for an attorney in the Provo/Orem area at the time of trial was between $61, 318.40 and $70, 886.40. The expert did not know how many applicants there were for the 260 attorney positions but admitted that the competition was "keen." The expert also testified that the entry-level annual salary for a wildlife biologist began at $40, 788.80. Danielle did not present any contrary expert testimony.

         ¶11 The court ultimately imputed $50, 000 in annual income to Danielle, identifying this sum as an "average" based on the vocational evaluator's testimony that Danielle could earn between $40, 788.80 and $70, 886.40. The court also made several findings about Danielle's ability to work as an attorney. For example, it found that Danielle's "lack of success as a lawyer was due to her failure to keep up with billable hours" but that "[t]his does not mean [she] is incapable of employment in a law job." The court pointed to evidence of Danielle's demonstrated negotiating and organizational capabilities, finding that her "testimony about her inability to be employed is not credible and she is fully employable." The court also noted the halfhearted efforts Danielle made to seek assistance from the Utah Department of Rehabilitation and to pursue mediation training and employment, ultimately finding that her "efforts to become self-sufficient have been inadequate."

         ¶12 On appeal, Danielle raises several objections to the district court's income imputation, namely that the vocational expert's testimony failed to establish that she could obtain employment as an attorney, that the court erred in concluding that her efforts to obtain employment had been inadequate, and that the court failed to judge her ability to ...

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