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Eberhard v. Eberhard

Court of Appeals of Utah

June 27, 2019

Todd Eberhard, Appellant,
Lori Ann Eberhard, Appellee.

          Third District Court, Salt Lake Department The Honorable Paige Petersen No. 024906303

          David Pedrazas, Attorney for Appellant

          Suzanne Marelius, Attorney for Appellee

          Judge Jill M. Pohlman authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.

          POHLMAN, JUDGE

         ¶1 Todd Eberhard and Lori Ann Eberhard divorced in 2003 after twenty-nine years of marriage. The stipulated divorce decree provided that Todd[1] would pay $4, 200 in monthly alimony to Lori and that upon Todd's retirement at age 65, "spousal support shall be reviewed and modified as provided by law." After the divorce, Todd continued to work as a physician, while Lori, who had no prior work experience, obtained a job in customer service four years later, in 2007.

         ¶2 In anticipation of his planned retirement in 2016, Todd filed a petition to modify the decree, seeking to terminate or reduce alimony once he and Lori began receiving funds from his pension. After a bench trial, the district court denied Todd's request to modify alimony at that time, ordering Todd to continue paying $4, 200 in alimony. But the court ordered that when Lori "reaches her full retirement age of 66 and is eligible to receive a social security retirement payment," Todd's alimony payment would be reduced by that amount. The court further ordered Todd to pay half of Lori's attorney fees and costs incurred defending against his petition to modify. Todd appeals, challenging the court's alimony and attorney fees decisions. We affirm in part and remand for the entry of additional findings of fact, without restriction to any modifications the court deems appropriate.


         ¶3 District courts have "considerable discretion in determining alimony." Boyer v. Boyer, 2011 UT App 141, ¶ 9, 259 P.3d 1063 (cleaned up). This court reviews "a district court's alimony determination for an abuse of discretion and will not disturb its ruling on alimony as long as the court exercises its discretion within the bounds and under the standards [Utah appellate courts] have set and has supported its decision with adequate findings and conclusions." Dahl v. Dahl, 2015 UT 79, ¶ 84 (cleaned up). Similarly, we "generally review a district court's determination to modify or not to modify a divorce decree for an abuse of discretion."[2] Fish v. Fish, 2016 UT App 125, ¶ 5, 379 P.3d 882.

         ¶4 When considering a challenge to the sufficiency of the evidence, "we will not set aside findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous." Dahl, 2015 UT 79, ¶ 121; see also Shuman v. Shuman, 2017 UT App 192, ¶ 3, 406 P.3d 258. A district court's "factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if [we have] a definite and firm conviction that a mistake has been made." Taft v. Taft, 2016 UT App 135, ¶ 16, 379 P.3d 890 (cleaned up).

         ¶5 The district court must "make adequate findings on all material issues of alimony to reveal the reasoning followed in making the award." Id. ¶ 14 (cleaned up). "Findings are adequate only if they are sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached." Id. (cleaned up). Whether the district court's findings are adequate presents a question of law. Dole v. Dole, 2018 UT App 195, ¶ 3, 437 P.3d 464; Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478.

         ¶6 We review the district court's award of attorney fees under Utah Code section 30-3-3, including the amount of the award, for abuse of discretion. Dahl, 2015 UT 79, ¶ 168; Davis v. Davis, 2003 UT App 282, ¶ 14, 76 P.3d 716.


         I. Alimony

         ¶7 Relevant to this appeal, the Utah Code instructs district courts to consider certain factors-known as the Jones factors- when determining alimony, including "the recipient's earning capacity or ability to produce income," "the financial condition and needs of the recipient spouse," and "the ability of the payor spouse to provide support."[3] Utah Code Ann. § 30-3-5(8)(a)(i)- (iii) (LexisNexis 2013); see also Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (listing these factors later codified in Utah Code section 30-3-5). The court's findings on each statutory factor must be sufficiently detailed "to enable a reviewing court to ensure that the [district] court's discretionary determination was rationally based upon these factors." Keyes v. Keyes, 2015 UT App 114, ¶ 33, 351 P.3d 90 (cleaned up).

         ¶8 The Utah Code also instructs that district courts should generally "look to the standard of living, existing at the time of separation, in determining alimony." Utah Code Ann. § 30-3-5(8)(e). "However, the court shall consider all relevant facts and equitable principles and may, in its discretion, base alimony on the standard of living that existed at the time of trial."[4] Id.; see also Dahl v. Dahl, 2015 UT 79, ¶ 111 ("[W]hile an alimony award would ideally allow both spouses to maintain the standard of living enjoyed during the marriage, the court is nevertheless obligated to support any alimony award with specific factual findings as to each statutory factor and is permitted to deviate from the general rule in light of the relevant facts and equities."). "Furthermore, the award should advance, as much as possible, the purposes of alimony by assisting the parties in achieving the same standard of living they enjoyed during the marriage, equalizing the parties' respective standards of living, and preventing either spouse from becoming a public charge." Hansen v. Hansen, 2014 UT App 96, ¶ 6, 325 P.3d 864 (cleaned up). These same considerations apply in later modification proceedings. Nicholson v. Nicholson, 2017 UT App 155, ¶ 17, 405 P.3d 749.

         ¶9 Here, the district court relied on the parties' testimony at the trial on the petition to modify to determine their standard of living at the time of their separation. Specifically, the court found that "during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full every month."

         ¶10 The court then considered the Jones factors. It found that every month Lori, who was age 63 at the time of trial, earned $1, 621.88 from her customer service job, received $4, 200 in alimony, and received $1, 533.74 as her share of Todd's pension. After deducting taxes, Lori was left with a net monthly income of $6, 141. Lori also had $330, 000 in retirement accounts, which was her share of the divorce settlement. Lori had incurred loans and debt after the divorce, and her reasonable monthly expenses amounted to $5, 309-an amount that the court found was "less than what [Lori] requires to live commensurate with the marital standard of living."

         ¶11 As for Todd, who was 66 years old and remarried, the court found that every month he received $3, 827.71 from his pension and $2, 326 from Social Security, and drew $3, 500 from various retirement accounts. After deducting taxes, Todd had a net monthly income of $7, 654. In addition, the court found that Todd had $1.5 million in retirement accounts from which he could draw "variable" amounts "at his discretion." Todd testified that he was supporting his current spouse who was not employed. The court found Todd's reasonable monthly expenses to be $8, 041-a figure that did not include the alimony payment. The court also found that he had "a very secure and comfortable lifestyle" and "no debt." As a result, the court found that Todd "has the ability to pay $4, 200 [in] monthly alimony."

         ¶12 In arriving at its decision, the district court deemed two other statutory factors "significant." In particular, the court considered "whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education received by the payor spouse or enabling the payor spouse to attend school during the marriage," Utah Code Ann. § 30-3-5(8)(a)(vii), and whether "one spouse's earning capacity has been greatly enhanced through the efforts of both spouses during the marriage," id. § 30-3-5(8)(g). The court determined that both of these factors were "applicable and support no reduction of alimony in this case."

         ¶13 Based on these findings, the court denied Todd's request to terminate or reduce alimony at that time.[5] It determined that Todd will continue to pay $4, 200 in monthly alimony for three years-until Lori reaches age 66 and qualifies for Social Security. At that point, Lori will receive about $1, 319 per month from Social Security, and the court ordered that Todd will then be allowed to reduce the alimony payment by the amount Lori receives from Social Security. In so doing, the court stated that Lori's income from her job, alimony, and Todd's pension are presently "needed to meet her reasonable expenses," but even then "she will still not have the standard of living of the marriage." It noted that Lori's needs "include the shortfall she has accumulated over the years since the divorce" and that Lori was "presently only barely meeting her needs for that debt service and reasonable monthly expenses." Given these considerations, the court stated its "intent to move [Lori] closer to being able to pay off her debt and better achieve a standard of living commensurate with the marital standard of living in this alimony award." However, the court made no specific finding as to what Lori's reasonable total monthly needs would be, observing only that her needs were greater than her current monthly expenses of $5, 309.

         ¶14 We address Todd's challenges to the alimony award as follows: (A) the marital standard of living, (B) Lori's earning capacity, (C) Lori's needs, (D) Todd's ability to provide support, and (E) the parties' line-item expenses. We affirm the district court in most respects, but we remand for the court to provide additional findings on the issues of Lori's needs and Todd's ability to pay.

         A. The Marital Standard of Living

         ¶15 Todd contends that the district court's findings about the parties' standard of living at the time of divorce-particularly regarding whether the cars were paid off and whether the parties paid their bills in full-were not supported by sufficient evidence. Todd also contends, in a conclusory manner, that the district court's findings were inadequate.

         ¶16 As stated, the court found that "[t]he trial testimony confirmed that during the marriage these parties enjoyed a good lifestyle with a nice home for their five-person family, a paid-for car, regular vacations, and they paid their bills in full each month." The court noted that the parties' testimonies in this regard were "quite consistent" and were sufficient to support its findings regarding the standard of living at the time of the divorce.

         ¶17 Todd has not shown clear error in the district court's findings on this score. First, Todd overlooks the fact that Lori testified that during the marriage she always had a car and they "paid for [their] cars outright[]." Second, Todd ignores Lori's testimony that, except for the house, they had no debt, "paid off [their] credit cards," and had funds available for unexpected expenses like replacing tires on a car. We conclude that Lori's testimony in this regard is sufficient evidence to support the district court's findings. See Bond v. Bond, 2018 UT App 38, ¶ 10, 420 P.3d 53 (reasoning that "[b]ecause the trial court's factual findings are clearly supported by [a witness's] testimony, we cannot conclude that they lack general evidentiary support"); see also Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994 ("[A]n appellate court's role is not to reweigh the evidence presented at trial but only to determine whether the court's decision is supported by the evidence, leaving questions of credibility and weight to the trial court.").

         ¶18 Todd's general challenge to the adequacy of the district court's findings also fails. The court explicitly stated that in considering the parties' standard of living existing at the time of divorce, it was relying on the parties' trial testimony, and Todd has not established that the court failed to show "the steps by which the ultimate conclusion on each factual issue was reached." See Taft v. Taft, 2016 UT App 135, ¶ 14, 379 P.3d 890 (cleaned up). We therefore reject Todd's arguments about the sufficiency of the evidence and adequacy of the district court's findings regarding the parties' standard of living.

         B. Lori's Earning Capacity

         ¶19 Todd contends that in considering Lori's earning capacity and ability to produce income, the district court "should have included [Lori's] income from Social Security and the unearned income from her retirement [accounts]."

         ¶20 District courts generally have "broad discretion in selecting an appropriate method of assessing a spouse's income." Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255; see also, e.g., Davis v. Davis, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716 (concluding that "while the trial court could have considered [a portion of the wife's monthly paycheck that she saved for retirement] as income, the court did not exceed its permitted range of discretion in choosing not to do so" (cleaned up)). Indeed, Utah law specifically grants district courts "flexibility to consider all sources of income" without mandating that the court treat all sources as income for purposes of calculating alimony. See Busche v. Busche, 2012 UT App 16, ¶ 31, 272 P.3d 748; see also Crompton v. Crompton, 888 P.2d 686, 689 (Utah Ct. App. 1994) (explaining that "it would be inappropriate for an appellate court to tie the hands of a [district] court" by requiring it in every case to confine its consideration of income in a certain way). Such matters are "left to the [district] court's ...

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