Woolums v. Woolums , 312 P.3d 939 ( 2013 )

2013 UT App 232_________________________________________________________
THE UTAH COURT OF APPEALS
CHRISTINE WOOLUMS,
Petitioner and Appellee,
v.
JASON DOUGLAS WOOLUMS,
Respondent and Appellant.
Opinion
No. 20120591‐CA
Filed September 26, 2013
First District, Brigham City Department
The Honorable Ben H. Hadfield
No. 104100363
Daniel R. Cragun, J. Jarom Bishop, Ryan J. Stanger,
and Colby B. Vogt, Attorneys for Appellant
R. Christian Hansen, Attorney for Appellee
JUDGE WILLIAM A. THORNE JR.1 authored this Opinion, in which
JUDGE STEPHEN L. ROTH concurred. JUDGE GREGORY K. ORME
concurred in part and dissented in part, with opinion.
THORNE, Judge:
¶1 Jason Douglas Woolums (Husband) appeals the district
court’s order awarding alimony of $579 per month to Christine
Woolums (Wife) for a period of time equal to the duration of the
parties’ marriage. We affirm.
1. Judge William A. Thorne Jr. participated in and voted on this
case as a regular member of the Utah Court of Appeals. He retired
from the court before this decision issued.
Woolums v. Woolums
BACKGROUND
¶2 Husband and Wife married on July 19, 1996. The marriage
produced three children, all of whom were minors at the time of
trial. The parties separated in May 2010, and Wife filed for divorce
in November of that year. Before trial, Husband and Wife settled
their child custody and support issues. However, they could not
reach an agreement on property division, division of marital debts,
and alimony, and the matter proceeded to trial on those issues on
April 18, 2012.
¶3 At trial, the parties presented evidence of their respective
financial need and income for purposes of establishing an alimony
award. To demonstrate her financial need, Wife presented an
Amended Financial Declaration to the court detailing her monthly
expenses. Wife testified at trial that her claimed expenses totaled
$3,406 and included a mixture of current expenses and prospective
expenditures that Wife expected to incur as she got settled. These
prospective expenditures included renter’s insurance, residential
maintenance costs, a telephone landline and internet connection,
insurance premiums, and estimated car payments. Wife provided
bills verifying her water, electricity, sewer, garbage, and cell phone
expenses but did not provide receipts or other documentary proof
for her other current and prospective expenses. The district court
reduced Wife’s claimed monthly residential maintenance expense
from $50 to $10 and adjusted her monthly incidental expenses
upward from $25 to $75, but it otherwise accepted Wife’s figures.
Ultimately, the district court determined that Wife’s monthly
expenses—including certain debts that Wife agreed to pay—totaled
$3,466.
¶4 As to her income, Wife provided the district court with a
W‐2 form showing an annual income of $7,502. However, Wife also
presented evidence that her annual 10% religious tithing was
$1,226, suggesting an annual income of $12,260. At the time of trial,
Wife worked part‐time for the Box Elder School District for twenty‐
five hours a week at $11.58 an hour. She had looked unsuccessfully
20120591‐CA 2 2013 UT App 232Woolums v. Woolums
for full‐time work, but could only locate additional part‐time work
that started at minimum wage and could increase to about $10 per
hour for florist work, at which Wife had some experience. In light
of this evidence, the district court imputed Wife’s gross income to
be $1,581 per month or $18,972 per year, representing her actual
part‐time income plus imputed income at the minimum wage of
$7.25 an hour for the balance of a full‐time work week.
¶5 During their marriage, the parties had incurred tens of
thousands of dollars of marital debt. Prior to trial, both parties
agreed that Husband would assume 93% of the outstanding
marital debt in order for him to ensure his good credit rating, avoid
bankruptcy, and keep the security clearance required by his current
job. One of the debts that Husband agreed to pay was a loan from
Husband’s mother for $50,000. The parties had made thirty $500
monthly payments and one $1,500 payment toward this loan over
the course of the marriage, but they had not made any payments
during the last seven months of their marriage. Despite the parties’
fairly consistent history of $500 monthly payments, the district
court allocated Husband only $100 per month toward servicing
that particular loan. The district court reasoned that there was no
note evidencing the loan, there was no formal payment schedule,
and Husband’s ability to repay his mother would increase over
time as he paid off other debts.
¶6 In light of this and other evidence, the district court
determined that Wife had an unmet monthly need of $1,045 and
that Husband had the ability to pay $579 per month in alimony.
Accordingly, the court ordered Husband to pay $579 in monthly
alimony. Husband argued that the alimony should be rehabilitative
in nature and last for some period less than the fourteen‐year
duration of the marriage. However, the district court awarded
traditional alimony for a period equal to the entire duration of the
marriage, reasoning that the couple had been married for fourteen
years, Wife was thirty‐four years old, and Wife had not received
any specialized job training or education beyond the high school
level. Husband appeals the district court’s alimony award.
20120591‐CA 3 2013 UT App 232Woolums v. Woolums
ISSUES AND STANDARD OF REVIEW
¶7 Husband raises multiple issues on appeal, challenging the
district court’s determination of Wife’s financial need and income,
its treatment of the marital debts, and its award of traditional
rather than rehabilitative alimony. We will not disturb the district
court’s alimony award unless Husband can demonstrate “‘a clear
and prejudicial abuse of discretion’” by the district court. Mark v.
Mark, 2009 UT App 374, ¶ 6, 223 P.3d 476 (quoting Riley v. Riley,
2006 UT App 214, ¶ 15, 138 P.3d 84).
ANALYSIS
I. Wife’s Financial Need
¶8 Husband’s first argument is that the district court abused its
discretion when it accepted Wife’s testimony as to many of her
claimed expenses even though those expenses were not yet being
incurred at the time of trial and Wife did not provide documentary
evidence in support of her testimony. Husband interprets our prior
decisions in Mark v. Mark, 2009 UT App 374, 223 P.3d 476, and
Jensen v. Jensen, 2008 UT App 392, 197 P.3d 117, as imposing a
requirement that the determination of expenses for purposes of
alimony computation must be based on current, actual expenses
that are documented by receipts, billing statements, or other
physical evidence. See Mark, 2009 UT App 374, ¶¶ 8–10 (remanding
alimony issue to district court in light of inadequate factual
findings to support the award); Jensen, 2008 UT App 392, ¶ 12
(affirming district court’s reduction of “‘overstated and
exaggerated’” claimed expenses).
¶9 Husband’s argument that expenses must be current
expenses that are actually being incurred at the time of trial is
foreclosed by Utah case law addressing this exact issue. This court
has disavowed the notion that “standard of living is determined by
actual expenses alone.” Howell v. Howell, 806 P.2d 1209, 1212 (Utah
20120591‐CA 4 2013 UT App 232Woolums v. Woolums
Ct. App. 1991). A party’s current, actual expenses “may be
necessarily lower than needed to maintain an appropriate standard
of living for various reasons, including, possibly, lack of income.”
Id. It is thus incumbent upon the district court to determine the
amount necessary to maintain the standard of living established
over the course of the marriage rather than the amount that is
actually being spent at the time of trial. See id.; see also Farnsworth
v. Farnsworth, 2012 UT App 282, ¶ 15, 288 P.3d 298 (affirming
district court’s finding that a prospective housing expense would
be $700 to $710 per month based on a hypothetical $140,000 house).
¶10 We are similarly unpersuaded by Husband’s argument that
Wife was required to provide documentary evidence in support of
her claimed expenses. Wife provided bills documenting many of
her current expenses, including her water, electricity, and cell
phone. As to her other claimed expenses, Wife testified as to the
amounts she was claiming and why. The district court largely
accepted Wife’s testimony, reducing only her claimed residential
maintenance expense while increasing her claimed incidental
expenses. The district court’s evaluation of and reliance on Wife’s
testimony, along with its own determinations of the reasonableness
of the claimed expenses, fell squarely within its broad discretion to
determine an appropriate alimony award. See Black v. Black, 2008
UT App 465, ¶ 11, 199 P.3d 371 (“Trial courts are given broad
discretion to address issues related to alimony.”); see also
Farnsworth, 2012 UT App 282, ¶¶ 4, 15–16 & n.5 (affirming the
district court’s housing expense determination based on testimony
as to the cost of new housing versus an apartment rental and horse
boarding); Davis v. Davis, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716(affirming the district court’s determination of a reasonable car
payment based solely on testimony).2
2. We note that in the absence of an applicable statute of frauds or
similar requirement of written evidence, triers of fact are generally
permitted—although not required—to accept oral testimony as a
legitimate basis for factual findings. This is true across the
(continued...)
20120591‐CA 5 2013 UT App 232Woolums v. Woolums
¶11 In light of these cases, the district court’s discretion clearly
encompasses basing its alimony determinations on testimony as to
both existing expenses and future expenses that are necessary to
maintain an appropriate standard of living.3 Here, the district court
relied on Wife’s testimony, along with some documentary
evidence, to determine Wife’s financial need. We affirm the district
court’s determination as falling well within the boundaries of its
discretion.
II. Wife’s Income
¶12 Husband argues that the court abused its discretion when
it imputed additional part‐time income to Wife at the minimum
wage of $7.25 per hour rather than the $10 per hour she could make
with her floral experience. Husband also argues that the district
court failed to consider all sources of Wife’s income because her
religious tithing suggested an annual income greater than that
reflected on her W‐2 form. We see no abuse of discretion in the
district court’s determinations regarding Wife’s income. See Griffith
2. (...continued)
spectrum of legal contexts, and we see no reason for a different rule
pertaining to alimony determinations. See, e.g., State v. Cecil, 2012
UT App 280, ¶ 11, 288 P.3d 22 (stating that testimony that the
defendant “‘accelerated into the hoist’ from a stop ten to fifteen feet
away and ‘crashed right into the engine hoist’ is clearly adequate
to support a finding that [the defendant] intentionally struck the
hoist”); Carbon Cnty. v. Department of Workforce Servs., 2012 UT App
4, ¶ 10, 269 P.3d 969 (stating that testimony provided “‘relevant
evidence [that] a reasonable mind might accept as adequate’ . . . to
support the Board’s factual findings” (alteration in original)
(citation omitted)), aff’d, 2013 UT 41.
3. We do not intend to discourage parties from providing
documentary evidence of their expenses if such evidence is
available, and we observe that such evidence is likely to be
considerably more persuasive than testimony alone.
20120591‐CA 6 2013 UT App 232Woolums v. Woolums
v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255 (“[T]rial courts have broad
discretion in selecting an appropriate method of assessing a
spouse’s income and will not be overturned absent an abuse of
discretion.”).
¶13 The district court’s imputation of part‐time income to Wife
in the amount of $7.25 an hour is supported by evidence at trial.
Wife testified that she had sought part‐time employment from
multiple potential employers but that most of them offered only
minimum wage. Wife testified that she had inquired at two floral
shops, and both had indicated that she would start any part‐time
work at minimum wage and that, even with her experience, her
wage would never exceed $10 per hour. Husband points to no
evidence contradicting Wife’s testimony on this issue. In light of
Wife’s undisputed testimony that any part‐time employment she
might obtain would start at minimum wage, we see no abuse of
discretion in the district court’s decision to impute additional part‐
time income in that amount. See Busche v. Busche, 2012 UT App 16,
¶ 24, 272 P.3d 748 (stating that the district court has the discretion
to determine “whether income ought to be imputed . . . , and if so,
how much”).
¶14 Husband also complains that the district court relied on
Wife’s W‐2 form to establish her annual income of $7,502 when her
10% religious tithing of $1,226 suggested an actual annual income
of $12,260. Husband argues that the district court’s failure to
account for this discrepancy violated its obligation to “consider all
sources of income” in making its alimony determination. See
Breinholt v. Breinholt, 905 P.2d 877, 880 (Utah Ct. App. 1995)
(citation and internal quotation marks omitted). Wife asserts on
appeal that the discrepancy resulted from her paying tithing on the
child support she received from Husband in addition to her
employment income. Although Wife acknowledges that there is no
direct record evidence to support this assertion, it is not
inconsistent with her testimony, and we observe that Husband
declined to file a reply brief refuting Wife’s claim.
20120591‐CA 7 2013 UT App 232Woolums v. Woolums
¶15 In any event, Husband acknowledges that any error arising
from the discrepancy between Wife’s W‐2 form and her tithing
statement would only prejudice him if the annual income
suggested by Wife’s tithing exceeded the total amount of Wife’s
actual and imputed income as determined by the district court. The
district court determined that Wife’s actual and imputed annual
income totaled $18,972—an amount greatly exceeding the amount
suggested by her tithing. Accordingly, Husband has suffered no
prejudice, and we will not disturb the district court’s determination
of Wife’s total actual and imputed income. See Mark v. Mark, 2009
UT App 374, ¶ 6, 223 P.3d 476 (“Alimony determinations will be
upheld on appeal unless a clear and prejudicial abuse of discretion
is demonstrated.” (emphasis added) (citation and internal
quotation marks omitted)).
III. Marital Debt
¶16 Husband next raises two arguments pertaining to the
district court’s treatment of the parties’ marital debt for purposes
of determining alimony. Husband argues that the district court’s
alimony award failed to adequately account for his voluntary
assumption of 93% of the marital debt and that the district court
abused its discretion in reducing his monthly debt service expense
on a loan from his mother from $500 to $100.
¶17 Husband argues that he was entitled to receive some
unspecified accommodation in the district court’s alimony award
in exchange for his assumption of the vast majority of the marital
debt. See Boyer v. Boyer, 2011 UT App 141, ¶ 11, 259 P.3d 1063(balancing the district court’s allocation of marital debt to husband
against its unequal property division in favor of husband).
Assuming that this argument is not completely foreclosed by
Husband’s voluntary assumption of the debt, we observe that
Husband did receive a benefit from the debt allocation—the ability
to ensure the payment of the debt and avoid any negative impact
on the security clearance required by his current employment. See
id. (affirming unequal debt allocation where district court “made
Husband responsible for the debt to decrease the likelihood of a
20120591‐CA 8 2013 UT App 232Woolums v. Woolums
bankruptcy, which could result in adverse professional
consequences for Husband”). We see no abuse of discretion in the
district court’s decision not to further accommodate Husband’s
voluntary debt assumption in the alimony award.
¶18 Husband also argues that the parties had historically made
$500 monthly payments to retire a $50,000 marital loan from
Husband’s mother and that the district court abused its discretion
when it allowed Husband only a $100 monthly expense to service
that debt going forward. However, the district court justified its
decision with findings that there was no note evidencing the loan,
there was no formal payment schedule, and Husband’s ability to
repay the loan would increase over time as he paid off other debts.
Further, the record reflects that the parties missed multiple
monthly payments over the course of the marriage and divorce
litigation with no apparent consequence.4 In light of the lack of a
promissory note, the parties’ informal and sporadic payment
history, and the district court’s recognition that Husband’s ability
to pay off the loan would increase over time, we see no abuse of
discretion in the decision to allow Husband only a $100 monthly
allocation for servicing the flexible loan from his mother.5
IV. Traditional Alimony
¶19 Finally, Husband challenges the district court’s decision to
award traditional alimony for a period of time equal to the
4. Husband acknowledges on appeal that when the missed
payments are taken into account, the parties’ average monthly
payment on the loan was only $415.
5. The dissenting opinion’s analysis of this issue would have
represented a justifiable exercise of discretion had the district court
chosen to employ it. However, the district court also acted within
its discretion when it elected to reprioritize the payment schedule
on the loan from Husband’s mother in light of the absence of fixed
repayment terms.
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duration of the parties’ marriage, arguing that Wife’s circumstances
are more amenable to a shorter‐term award of rehabilitative
alimony. Compare Bell v. Bell, 810 P.2d 489, 491–92 (Utah Ct. App.
1991) (“The most important function of [traditional] alimony is to
provide support for the wife as nearly as possible at the standard
of living she enjoyed during the marriage, and to prevent the wife
from becoming a public charge.” (citation and internal quotation
marks omitted)), with Mark v. Mark, 2009 UT App 374, ¶ 12, 223
P.3d 476 (stating that the purpose of rehabilitative alimony is to
close the immediate gap between expenses and income and to
enable the recipient spouse to become more self‐sufficient by the
end of the rehabilitative period). Husband argues that the facts of
this case are comparable to those in Boyer v. Boyer, 2011 UT App
141, 259 P.3d 1063, which this court described as “precisely the
context in which a rehabilitative alimony award may be
appropriate.” Id. ¶ 17.
¶20 In Boyer, we reaffirmed that “‘[t]he length of the marriage,
the age of the recipient spouse, and the employment history and
employability of the recipient spouse’ are relevant factors to
consider in determining whether an award of rehabilitative
alimony, rather than traditional alimony, is appropriate.” Id.
(quoting Mark, 2009 UT App 374, ¶ 12). The recipient spouse in
Boyer was thirty‐eight years old, worked part‐time at $11.50 per
hour, and possessed significant professional skills, and the
duration of the parties’ marriage was approximately fourteen
years. See id. ¶¶ 2, 17. We agree with Husband that these facts are
roughly comparable to the circumstances facing Wife in this case.
¶21 However, while Husband correctly cites Boyer for the
proposition that these facts would support an award of
rehabilitative alimony, Boyer expressly recognized that the same
facts would also support a traditional alimony award. See id. ¶ 19
(“Given the circumstances of this case, neither ruling would be an
abuse of the trial court’s discretion.”). In light of this express
language of approval based on roughly similar facts, we cannot say
that the district court abused its discretion by awarding traditional
alimony to Wife in the present case.
20120591‐CA 10 2013 UT App 232Woolums v. Woolums
CONCLUSION
¶22 We conclude that Husband has failed to demonstrate that
any of the district court’s rulings pertaining to Wife’s expenses and
income, the marital debt, or the question of traditional versus
rehabilitative alimony constituted an abuse of the district court’s
broad discretion to determine matters pertaining to alimony. We
therefore affirm the district court’s alimony award.
ORME, Judge (concurring in part and dissenting in part):
¶23 I concur in the court’s opinion in all respects but one. The
loan from Husband’s mother seems to have been on a much firmer
footing than the intra‐family “loans” that sometimes surface in
divorce cases. See generally Finlayson v. Finlayson, 874 P.2d 843, 848
(Utah Ct. App. 1994) (“Whether moneys received from close family
members represent a gift or a debt can be problematic.”). While
there may not have been a note memorializing the loan in the
instant case, there was a firmly established payment schedule of
$500 per month. Cf. Baker v. Baker, 866 P.2d 540, 543 (Utah Ct. App.
1993) (holding that evidence was sufficient to support trial court’s
finding that loan from husband’s parents was not a gift, even
though no note memorialized debt, where husband and his parents
had always viewed the money as a loan and there was evidence of
payment history). Thirty such payments were made. And the one
$1500 payment was presumably just a single check covering three
months. The fact that seven payments were missed as the marriage
was winding down did not mean the debt had vaporized; rather,
it meant that the family was readjusting to the financial realities of
divorce and that Husband’s mother was inclined to cut them a little
slack.
¶24 Especially because the district court was willing to take into
account expenses that Wife was not currently incurring, but soon
would be, it should have similarly allocated to Husband’s expense
column the historical payment schedule on the debt owed to his
20120591‐CA 11 2013 UT App 232Woolums v. Woolums
mother, namely $500 per month, even though repayment had been
briefly suspended. This expense was even more firmly
demonstrated than were several of Wife’s claimed future expenses
recognized by the district court, which were based solely on her
own testimony as to her plans for the future and her estimates
about the additional costs those plans would entail.
¶25 I would remand the case for the limited purpose of having
the district court recompute the monthly alimony amount payable
by Husband, taking into account the full amount of this $500 per
month expense for debt payment.
20120591‐CA 12 2013 UT App 232