Beal v. Beal , 300 P.3d 769 ( 2013 )

2013 UT App 105_________________________________________________________
THE UTAH COURT OF APPEALS
NANETTE LYNN BEAL,
Petitioner and Appellant,
v.
PATRICK MICHAEL BEAL,
Respondent and Appellee.
Opinion
No. 20110903‐CA
Filed April 25, 2013
Third District, West Jordan Department
The Honorable Mark S. Kouris
No. 074400610
David R. Hartwig, Attorney for Appellant
David S. Pace, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
CAROLYN B. MCHUGH and STEPHEN L. ROTH concurred.
ORME, Judge:
¶1 After a series of three review hearings in 2010, the district
court determined that Nanette Beal was not entitled to alimony
from her ex‐husband, Patrick Beal, under the terms of their 2007
divorce decree. Nanette appeals that determination, and we affirm.
BACKGROUND
¶2 The Beals’ divorce was finalized on September 21, 2007. The
divorce decree provided Nanette $2,500 per month in “transitional
alimony” from May 2007 to September 2009, when both parties
Beal v. Beal
were required to convene for an alimony review.1 For that review,
the decree required both parties to exchange “all income and asset
information, from any source, including trusts, government benefits,
employment, investments, etc.” (Emphasis added.) In a separate
provision, the decree provided that each spouse would receive all
property attributable to their respective families.
¶3 In anticipation of the mandated alimony review, Patrick
requested that Nanette produce various financial documents,
including copies of documents related to a trust of which Nanette
is a beneficiary. At the time of their divorce, Nanette was in
possession of two copies of the trust documents,2 but she claimed
to have returned those copies to her father, the trustee, sometime
later.3 On January 15, 2009, the district court ordered Nanette to
provide a copy of the trust documents to Patrick within fifteen
days. Despite that order, Nanette did not provide Patrick with a
copy and did not make any effort to obtain a copy from her father.
¶4 On April 30, 2010, the first evidentiary hearing to review the
parties’ alimony status was held. Nanette still had not submitted a
copy of the trust documents to either Patrick or the court. Patrick
testified that both parties were aware of the trust during their
marriage and that he had seen an accounting of the trust placing its
1. While the amount of permanent alimony remained unset, the
divorce decree memorialized that alimony was to continue for a
period of time equal to the length of the marriage, subject to
termination on the death of either party, remarriage of Nanette,
cohabitation of Nanette with a non‐related person of the opposite
sex, or any other statutory ground for termination.
2. When the parties separated, Nanette took the copies of the trust
documents with her. Patrick was not in possession of a copy of the
trust documents from that point until Nanette produced trust
documentation shortly before the second evidentiary hearing.
3. Nanette never explained why, as a trust beneficiary, she chose to
part with her only copies of these important documents.
20110903‐CA 2 2013 UT App 105Beal v. Beal
value at $435,000 in 1991. Nanette testified that she had not
attempted to obtain a copy of the trust documents, had not
received anything from the trust, and had no expectation of
receiving any income from the trust.
¶5 During the course of the hearing, the court discovered
several discrepancies between Nanette’s submitted financial
declaration,4 her testimony, Patrick’s testimony, and other
documentation submitted by the parties. In light of those
discrepancies, the district court ultimately concluded that it could
not make an appropriate alimony determination without
supplemental briefing, argument, and an additional hearing.
Accordingly, a follow‐up hearing was scheduled.
¶6 Shortly before the second hearing, Nanette produced a copy
of the original trust agreement, but she did not include an
accounting of the trust’s activities or any subsequent amendments
to the trust of which Patrick testified having knowledge. Those
documents—and the absent accounting—generated concerns from
both the court and Patrick about whether Nanette was receiving
any income from the trust, and the court concluded that
questioning Nanette about the trust would be both beneficial and
necessary. Nanette was not in attendance during the second
hearing, however, so the district court once again continued the
matter and scheduled another hearing. At that point, the court
issued an order requiring Nanette to “produce all relevant and
necessary documents concerning the referenced trust subject to
request from [Patrick]” for review before the hearing.
¶7 The third and final hearing was held on September 7, 2010.
Nanette represented to the court that she had produced all
documents relevant to the trust. The amended financial declaration
she submitted for the hearing showed $30,750 in loans from her
4. Nanette did not list the trust on her financial declaration, even
though she is a named beneficiary.
20110903‐CA 3 2013 UT App 105Beal v. Beal
father,5 but Nanette did not put on any evidence in an effort to
establish that the money did not actually come from the trust of
which her father was trustee and she was beneficiary. Instead, she
merely reasserted that she had not received any money from the
trust.
¶8 In a written memorandum decision, the district court
determined that Nanette would not be awarded any alimony. The
court’s decision factored in Patrick’s ability to provide support and
Nanette’s ability to produce income. While the court was able to
calculate Patrick’s net disposable monthly income at a negative
$303, it was unable to conclusively determine Nanette’s income or
ability to earn income. The court noted that Nanette had failed to
timely comply with numerous court orders; that there were still
unresolved discrepancies between Nanette’s financial declaration,
her testimony, and the submitted trust documentation; that the
trust language explicitly stated that the trust was “intended for the
personal protection and welfare” of Nanette; and that Patrick
testified that by the terms of the trust, Nanette was entitled to
receive all assets of the trust.6 The district court concluded that
because it could not “ascertain [Nanette’s] ability to earn,” there
was no reason to evaluate her financial need and she was not
entitled to any further alimony.
ISSUES AND STANDARDS OF REVIEW
¶9 Nanette first challenges the district court’s analytical
framework, arguing that it could only “terminate” her alimony
5. The debt had increased $15,000 from her previous financial
statement and had grown in fairly regular $3,000 increments.
6. Patrick testified that the trust originally provided for full
disbursement of the trust assets to Nanette when she turned forty.
The trust was amended while the parties were still married to
change the payout age to fifty. Nanette was older than fifty at the
time of the third hearing.
20110903‐CA 4 2013 UT App 105Beal v. Beal
upon a showing of a substantial change in circumstances. See Wells
v. Wells, 871 P.2d 1036, 1040 (Utah Ct. App. 1994) (“On a petition to
modify a divorce decree, the threshold requirement is a showing
of a substantial change of circumstances since entry of the divorce
decree.”). Whether the district court applied the proper legal
standard is a question of law that is reviewed for correctness. Chen
v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177.
¶10 Nanette also challenges the district court’s alimony
determination. In essence, Nanette argues that the court erred both
in requiring her to produce all trust documents and in relying on
the documents she did produce in determining its award. Courts
have wide latitude in determining alimony awards, and we will not
overturn an alimony determination “unless a clear and prejudicial
abuse of discretion is demonstrated.” Riley v. Riley, 2006 UT App
214, ¶ 15, 138 P.3d 84 (citations and internal quotation marks
omitted).
I. Alimony Framework
¶11 Nanette contends that the “transitional alimony” awarded
in the divorce decree was actually a final and permanent alimony
award. As such, she maintains that the award can only be changed
if Patrick adequately demonstrates a substantial change in
circumstances. We disagree. Alimony awards come in different
varieties. See, e.g., Wells, 871 P.2d at 1038–39 (analyzing court’s
ability to award temporary alimony); Bell v. Bell, 810 P.2d 489, 493
n.3 (Utah Ct. App. 1991) (“The purpose of rehabilitative alimony is
in the short run to close the gap between actual expenses and
actual income to enable the receiving spouse to then be better able
to support herself when the alimony and schooling end.”); Petersen
v. Petersen, 737 P.2d 237, 242 n.4 (Utah Ct. App. 1987) (observing
that “reimbursement” alimony is sometimes appropriate). And
several of those variants are not considered permanent alimony
awards. See Wells, 871 P.2d at 1039 (indicating that temporary
alimony is separate and distinct from permanent alimony).
20110903‐CA 5 2013 UT App 105Beal v. Beal
¶12 While the award here was not expressly characterized as a
temporary award, the plain meaning of the phrase “transitional
alimony” and the clear intent of the divorce decree demonstrate
that the award was not meant to be permanent. “Transition” is not
synonymous with permanence, but rather relates to “a passage or
movement from one state, condition, or place to another.” See
Webster’s Third New Int’l Dictionary 2428 (1993). Therefore, the
decree’s “transitional” award is, by definition, an award that is
subject to change. Within the framework of this divorce decree,
which calls for an alimony review after two years and following the
exchange of information that would permit the calculation of a
permanent alimony award, an award intended to be reviewed and
changed cannot reasonably be viewed as permanent.
¶13 From all that appears, the transitional alimony award and
delayed review were intended to put the requisite statutory
alimony determination on hold for two years to provide Nanette
adequate time to complete her ongoing education and otherwise
transition into her new circumstances. While courts have broad
discretion in fashioning permanent alimony awards, they must at
least consider the following factors:
(i) the financial condition and needs of the recipient
spouse;
(ii) the recipient’s earning capacity or ability to
produce income;
(iii) the ability of the payor spouse to provide
support;
(iv) the length of the marriage;
(v) whether the recipient spouse has custody of
minor children requiring support;
(vi) whether the recipient spouse worked in a
business owned or operated by the payor spouse;
and
(vii) whether the recipient spouse directly
contributed to any increase in the payor spouse’s
skill by paying for education received by the payor
20110903‐CA 6 2013 UT App 105Beal v. Beal
spouse or allowing the payor spouse to attend school
during the marriage.
Utah Code Ann. § 30‐3‐5(8)(a) (LexisNexis Supp. 2012).7 See Jensen
v. Jensen, 2008 UT App 392, ¶ 9, 197 P.3d 117. There is nothing in
the divorce decree or record to demonstrate that these factors were
analyzed at all before the district court granted the $2,500 per
month transitional alimony.8 Instead, the court specifically left that
analysis for another day and gave Nanette a transitional award in
the interim. When the parties finally reconvened in April 2010, it
was incumbent upon the court to engage in a detailed analysis of
those statutory factors—which it did—rather than require Patrick
to demonstrate why the transitional award should not simply be
made permanent. We conclude that the court applied the correct
legal standard and that substantial‐change‐in‐circumstances
analysis is not applicable in this situation.
II. Alimony Determination
¶14 Nanette argues that the district court erred in requiring her
to produce all of the trust documents and in factoring the
documents she did provide into its alimony determination. In
making its determination, the district court was required to
consider “the recipient’s earning capacity or ability to produce
income.” Utah Code Ann. § 30‐3‐5(8)(a)(ii) (LexisNexis Supp. 2012).
Without question, a trust of which Nanette is a beneficiary and that
7. Because the provisions in effect at the relevant time do not differ
materially from the statutory provisions now in effect, we cite the
most recent version of the Utah Code as a convenience to the
reader.
8. The notably round figure of $2,500 is itself suggestive of a
number that was simply agreed to or considered as a plausible
ballpark figure rather than one that emerged from the careful
calculations contemplated by section 30‐3‐5(8)(a).
20110903‐CA 7 2013 UT App 105Beal v. Beal
was created “for [her] personal protection and welfare” is both an
asset and a potential source of income.
¶15 Under the law of both Utah and Arizona, where the trust
was formed, a trust beneficiary is unqualifiedly entitled to a copy
of any trust instrument that describes or affects the beneficiary’s
interest. See Utah Code Ann. § 75‐7‐811(2)(a) (LexisNexis Supp.
2012); Ariz. Rev. Stat. Ann. § 14‐10813(B)(1) (2012). A trust
beneficiary is also entitled in both states to a yearly report of the
trust property, liabilities, receipts, and disbursements. See Utah
Code Ann. § 75‐7‐811(3); Ariz. Rev. Stat. Ann. § 14‐10813(C).
Therefore, Nanette was in a position to timely produce all of the
requested trust documentation to Patrick and to the court via a
demand for copies from her father, the trustee. Rather than
complying with multiple production requests and court orders,
however, Nanette chose not to produce any documents for well
over a year without any explanation. Even after she finally
produced a copy of the original trust instrument, Nanette did not
provide an accounting of the trust’s activities, generating more
concerns and questions from the district court. The court was
ultimately saddled with numerous abnormalities and
discrepancies, including the ever‐increasing debt allegedly owed
to Nanette’s father and the fact that she had apparently become
entitled to the trust proceeds. With the limited information before
it, the court simply had no way to accurately calculate Nanette’s
income stream.
CONCLUSION
¶16 Because the district court was not modifying the amount of
permanent alimony set in the divorce decree but setting an initial
permanent award, the court was correct to analyze the statutory
factors under Utah Code section 30‐3‐5(8)(a). Nanette was in a
position to timely and fully produce all of the requested trust
documentation, which she did not do. Given the numerous
discrepancies and unresolved issues identified by the court,
20110903‐CA 8 2013 UT App 105Beal v. Beal
coupled with Nanette’s relative lack of cooperation and candor, we
cannot conclude that the district court abused its discretion in
determining that Nanette had not demonstrated that she was
entitled to an award of permanent alimony.
¶17 Affirmed.9
9. Patrick seeks an award of attorney fees incurred on appeal.
Because the district court ordered the parties to pay their own fees
below, we decline to award attorney fees on appeal. See Larson v.
Larson, 888 P.2d 719, 727 (Utah Ct. App. 1994).
20110903‐CA 9 2013 UT App 105