Donnelly v. Donnelly , 301 P.3d 6 ( 2013 )

2013 UT App 84_________________________________________________________
THE UTAH COURT OF APPEALS
MICHAEL DONNELLY,
Petitioner, Appellant, and Cross‐appellee,
v.
STACY DONNELLY,
Respondent, Appellee, and Cross‐appellant.
Opinion
No. 20100764‐CA
Filed April 4, 2013
Third District, Silver Summit Department
The Honorable Keith A. Kelly
The Honorable Bruce C. Lubeck
No. 054500031
Steve S. Christensen and Lisa B. Thornton,
Attorneys for Appellant
Thomas R. King, Attorney for Appellee
JUDGE WILLIAM A. THORNE JR. authored this Opinion,
in which J. FREDERIC VOROS concurred.
JUDGE GREGORY K. ORME concurred, with opinion.
THORNE, Judge:
¶1 Michael Donnelly (Husband) appeals from the district
court’s Decree of Divorce, challenging the district court’s tempo‐
rary and permanent alimony awards and its orders pertaining to
reimbursement of travel expenses and medical insurance premi‐
ums. Stacy Donnelly (Wife) cross‐appeals, challenging the district
Donnelly v. Donnelly
court’s decision to value Husband’s retirement plan as of the date
of the parties’ separation rather than the date of divorce. We affirm.
BACKGROUND
¶2 Husband and Wife married in 1996. The marriage produced
three children, born in 1998, 2001, and 2002. There was apparently
considerable discord between Husband and Wife over the course
of the marriage.1 The couple separated in January 2005, and
Husband filed for divorce in February 2005. The district court
entered a Temporary Order on April 12, 2005, awarding Wife
temporary physical and legal custody of the children and ordering
Husband to pay $1,719 per month in child support and $2,000 per
month as temporary spousal support. The Temporary Order also
awarded Wife possession of the marital home and ordered her to
pay the mortgage and utilities on the residence, which amounted
to approximately $2,000 per month. At the hearing on temporary
orders, the district court also ordered Husband to pay the full
amount of the children’s medical insurance premiums during the
pendency of the action.
¶3 In June 2005, Wife moved to New Jersey and took the
children with her. They took up residence rent‐free at Wife’s
parents’ home. The ostensible reason for the relocation was to
improve Wife’s health, although the district court later determined
that Wife moved “not solely for medical reasons but indeed to get
away from [Husband], because of her views toward him.” At some
1. The parties’ conflicts continued throughout the litigation of this
matter, with accusations of sexual abuse, interference with
visitation, and disputes over the payment of alimony. Despite the
importance of these issues to the parties—and to some aspects of
the district court’s decision‐making—we largely omit them from
our discussion of the case, except as necessary for our analysis of
the legal issues properly before us on appeal and cross‐appeal.
20100764‐CA 2 2013 UT App 84Donnelly v. Donnelly
point following the move, the parties’ youngest child was diag‐
nosed with autism.
¶4 In November 2005, Husband moved for a reduction in
temporary alimony on the grounds that he had lost $1,000 per
month in income from a second job and that Wife’s financial need
had been reduced by approximately $2,000 when the marital home
had sold in June, eliminating her mortgage and utility obligations.
However, by this time, Wife claimed an increase in her monthly
financial needs notwithstanding the elimination of her housing
expenses. After “more carefully examin[ing] the previous orders,
the submissions of the parties with respect to income and expenses,
and the need and ability,” the district court ordered that Wife’s
temporary alimony award be lowered to $1,500 per month,
effective December 2005 (the Amended Temporary Order).
¶5 The matter finally came to trial on September 2, 3, and 4,
2009. In its September 16, 2009 Memorandum Decision, the district
court awarded sole legal and physical custody of the children to
Wife, with parent‐time as recommended by a court‐appointed
custody evaluator. The district court found that Husband earned
$7,031 per month in his employment as a systems analyst and
software engineer. The court found that Wife was not employed,
but, for the first time, imputed income to her in the amount of
$1,600 per month. In light of these income findings, the district
court ordered Husband to pay child support pursuant to Utah’s
child support guidelines, which was ultimately calculated to be
$1,348 per month.
¶6 As to alimony, the district court applied the above income
figures and made findings regarding each party’s financial need.
Husband claimed expenses of $4,529 per month, which the district
court reduced to $4,100. Wife claimed monthly expenses of $5,703
per month, a figure that did not include housing expenses because
she and the children continued to live rent‐free at Wife’s parents’
home. Wife’s claimed expenses included “special foods for [the
parties’ youngest child], lots of therapy for him, and so forth.” The
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district court allowed the “special needs child expenses” but
disallowed other claimed expenses including play dates, classroom
parties, and veterinary expenses. Ultimately, the court determined
Wife’s monthly need to be $4,200 per month. The court then made
its alimony determination as follows:
Weighing all the necessary factors (ability to provide
for self, need, and ability to assist, and others), and
given the rather imprecise nature of the true ex‐
penses of [Wife] particularly as they relate to [the
parties’ youngest child], and given her payments
shown on many, many other things which appear to
be unrelated to the claims concerning [the child]
(clothing and restaurants and storage and pets
appear to average over $1000 per month in total), and
given the uncertain nature of [Wife’s] ability to truly
provide for herself considering her medical condi‐
tion, and given the imprecise amounts needed for the
travel [Husband] will incur to see the children, the
court believes that $1000 per month is a fair and
equitable amount of alimony.
¶7 The district court also entered judgment in favor of Wife for
$18,861 in past due alimony and child support payments and
$8,575 for reimbursement of medical expenses, allowing Husband
a $5,658 credit for prior overpayments of child support that had
resulted from a clerical error and a $5,944 credit for payments he
had made toward marital debt. The court denied Husband’s
request that temporary alimony be retroactively reduced or
eliminated as occasioned by the elimination of Wife’s housing
expenses when she moved to New Jersey. The court also denied
Husband’s request for reimbursement for the children’s visitation‐
related travel expenses that were necessitated by Wife’s relocation.
The court addressed cross‐motions for contempt, finding Wife in
contempt for interfering with visitation but reserving the issue of
sanctions. The court declined to find Husband in contempt for his
support arrearages.
20100764‐CA 4 2013 UT App 84Donnelly v. Donnelly
¶8 On September 14, 2009, after trial but prior to the issuance
of the Memorandum Decision, Wife filed a motion asking the
district court to reopen the case to accept additional evidence
pertaining to the valuation and division of Husband’s retirement
account. The Memorandum Decision reserved this issue pending
Husband’s response, and the district court eventually granted the
motion and held a hearing on the issues of when the account
should be valued and how it should be divided. On December 24,
the district court issued its Supplemental Memorandum Decision,
ruling that the retirement account was to be equally divided
between the parties based on the account’s value as of the parties’
January 2005 separation. On March 8, 2010, the district court
entered a Decree of Divorce that incorporated both the Memoran‐
dum Decision and the Supplemental Memorandum Decision.
¶9 On March 22, Husband filed a motion seeking to amend the
Decree of Divorce to order an offset to Husband’s past‐due support
payments in the amount of one half of the children’s medical
insurance premiums that Husband had paid pursuant to court
order during the pendency of the litigation. Wife opposed Hus‐
band’s motions, arguing that Husband had never previously raised
the issue despite having multiple appropriate opportunities to do
so. The district court denied Husband’s motion on June 22, 2010,
“for the reasons stated by [Wife] in her opposition.” Husband filed
a timely notice of appeal, and Wife filed a timely notice of cross‐
appeal.
ISSUES AND STANDARDS OF REVIEW
¶10 On appeal, Husband raises various challenges to the district
court’s temporary and permanent alimony awards. We review the
district court’s alimony rulings under an abuse of discretion
standard. See Olson v. Olson, 2010 UT App 22, ¶ 8, 226 P.3d 751(“The district court is granted considerable discretion in determin‐
ing alimony, and its alimony determinations will be upheld on
appeal unless a clear and prejudicial abuse of discretion is demon‐
20100764‐CA 5 2013 UT App 84Donnelly v. Donnelly
strated.” (citations and internal quotation marks omitted));
Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 37, 176 P.3d 476 (“We
review . . . grants of temporary support for an abuse of discre‐
tion.”).
¶11 Husband next argues that the district court misinterpreted
Utah’s relocation statute, see Utah Code Ann. § 30‐3‐37 (LexisNexis
Supp. 2012),2 and generally abused its discretion when it refused to
order Wife to reimburse husband for certain travel expenses
incurred as a result of Wife’s relocation. “[A] trial court’s interpre‐
tation of a statute is a question of law that we review for correct‐
ness.” Davis v. Davis, 2011 UT App 311, ¶ 9, 263 P.3d 520 (alteration
in original).
¶12 Finally, Husband argues that the district court erred when
it failed to order Wife to reimburse Husband for one half of the
children’s medical insurance premiums during the nearly five‐year
pendency of this action, which Husband had been ordered to pay
at a March 2005 hearing on temporary orders. We review the
district court’s denial of a motion to amend a judgment pursuant
to rule 59(e) of the Utah Rules of Civil Procedure for an abuse of
discretion. See Crestwood Cove Apts. Bus. Trust v. Turner, 2007 UT 48,
¶ 40, 164 P.3d 1247 (stating that “a trial court has broad discretion
to decide whether to grant relief under [rule 59]”).
¶13 On cross‐appeal, Wife argues that the district court erred in
valuing Husband’s retirement account at the time of the parties’
2. Utah Code section 30‐3‐37 has been amended and internally
renumbered several times since the onset of this litigation.
However, the language implicated by Husband’s argument has
remained substantively unchanged and, for convenience, we
simply cite to the current version of the statute. We do the same
with other relevant statutory provisions that have remained
substantively unchanged from the versions applied by the district
court over the lengthy course of this litigation.
20100764‐CA 6 2013 UT App 84Donnelly v. Donnelly
separation rather than at the time of divorce. “Trial courts have
considerable discretion in determining . . . property distribution in
divorce cases, and [their decisions] will be upheld on appeal unless
a clear and prejudicial abuse of discretion is demonstrated.”
Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 8, 205 P.3d 891(omission and alteration in original) (citation and internal quota‐
tion marks omitted).
ANALYSIS
I. Alimony
¶14 The district court entered three different orders setting
alimony in this matter. The April 2005 Temporary Order initially
set Husband’s temporary alimony obligation at $2,000 per month.
The December 2005 Amended Temporary Order reduced tempo‐
rary alimony to $1,500 per month. Finally, after trial, the September
2009 Memorandum Decision and subsequent Decree of Divorce
awarded Wife monthly alimony in the amount of $1,000. Husband
challenges each of these awards.3
A. The Temporary Order
¶15 Husband argues that the district court failed to adequately
consider his income and ability to pay and failed to consider Wife’s
potential to produce income when it entered the April 2005
Temporary Order awarding Wife $2,000 in temporary alimony. He
3. Husband’s appellate brief raises multiple arguments implicating
the three separate alimony orders, and it is sometimes difficult to
match up each argument to the order or orders that it applies to. To
the extent that the organization of Husband’s brief has caused us
to misidentify or otherwise miss intended arguments, we decline
to address those arguments. Cf. Utah R. App. P. 24(k) (requiring
briefs to be “logically arranged with proper headings”).
20100764‐CA 7 2013 UT App 84Donnelly v. Donnelly
further argues that the district court failed to enter adequate
findings of fact on these issues.
¶16 As to Husband’s income and ability to pay, Husband’s brief
on appeal acknowledges that the district court based the Tempo‐
rary Order on a total monthly income to him of at least $7,158.4
Husband’s brief fails to explain, however, how this income was
insufficient to pay the ordered $2,000 in temporary alimony.
Husband’s brief also fails to identify how and where Husband
preserved this issue by arguing to the district court that the initial
$2,000 award was too high for him to afford. See Utah R. App. P.
24(a)(5)(A) (requiring “citation to the record showing that the issue
was preserved in the trial court”); 438 Main St. v. Easy Heat, Inc.,
2004 UT 72, ¶ 51, 99 P.3d 801 (“‘[I]n order to preserve an issue for
appeal[,] the issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that issue.’”
(alterations in original) (citation omitted)). In light of this lack of
demonstrated preservation, we decline to address this issue.
¶17 We also see no indication that Husband requested that the
district court impute income to Wife at the time the Temporary
Order was entered or that he objected when the district court failed
to address the issue of imputing income to Wife. Accordingly, this
issue is unpreserved for appeal, see 438 Main St., 2004 UT 72, ¶ 51,
and we decline to address it.
¶18 Finally, Husband argues that the district court failed to
make factual findings in the Temporary Order on the issues of his
ability to pay and imputation of Wife’s income. However, Husband
never objected to the alleged inadequacy of the district court’s
factual findings, and therefore the issue of the adequacy of the
findings is itself unpreserved. See In re K.F., 2009 UT 4, ¶ 60, 201
4. We note that the district court indicated at the hearing that it was
also relying on the expectation that Husband would shortly be
receiving an inheritance in the amount of approximately $30,000.
20100764‐CA 8 2013 UT App 84Donnelly v. Donnelly
P.3d 985 (stating that a party “‘waive[s] any argument regarding
whether the district court’s findings of fact were sufficiently
detailed’ when the [party] fails to challenge the detail, or adequacy,
of the findings with the district court” (first alteration in original)
(quoting 438 Main St., 2004 UT 72, ¶ 56)).
B. The Amended Temporary Order
¶19 Husband raises multiple arguments that the December 2005
Temporary Amended Order represented an abuse of the district
court’s discretion. Specifically, Husband argues that the district
court failed to consider Wife’s actual financial needs, Wife’s access
to financial assistance from her parents and a trust account, Wife
and Husband’s respective standards of living, Wife’s ability to
produce income, and Husband’s ability to pay. Husband also
argues that the district court failed to make adequate factual
findings.
¶20 The Amended Temporary Order resulted from Husband’s
motion to reduce temporary alimony, which asserted only two
grounds for a reduction: the sale of the marital home due to Wife’s
relocation to New Jersey, which resulted in the elimination of
Wife’s housing expenses, and Husband’s reduction in actual
income as a result of his loss of part‐time employment at a second
job. However, in response, Wife submitted updated financial
information and represented to the court that, despite the elimina‐
tion of her housing expenses, her monthly need had actually
increased to $4,135. The issues of whether income should be
imputed to Wife, Wife’s parents’ financial assistance to her outside
of providing housing, and the existence and effect of the trust were
not raised by Husband at this stage in the proceedings.
¶21 After a hearing on Husband’s motion to reduce alimony, the
district court entered the Amended Temporary Order reducing
monthly temporary alimony from $2,000 to $1,500. The Amended
Temporary Order stated that the reduction was a result of the
district court “more carefully examin[ing] the previous orders, the
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submissions of the parties with respect to income and expenses,
and the need and ability.” Husband neither objected to this order
as being too cursory nor requested that the court enter specific
factual findings relating to his arguments now on appeal.
¶22 Several of Husband’s challenges to the Amended Tempo‐
rary Order—i.e., Wife’s access to financial assistance from her
parents and a trust account, Wife and Husband’s respective
standards of living, and Wife’s ability to produce income—were
not preserved, and we decline to consider them. See 438 Main St. v.
Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. To the extent that
Husband challenges the adequacy of the district court’s factual
findings, he also failed to preserve that issue by objecting to the
Amended Temporary Order in the district court. See In re K.F., 2009
UT 4, ¶ 60.
¶23 As to the issues that were actually presented to the district
court—Wife’s post‐relocation financial needs and Husband’s
reduction in actual income—we cannot say that the district court’s
decision represents an abuse of discretion. The district court was
presented with conflicting evidence about Wife’s financial need,
with Wife claiming monthly expenses of $4,135. After accounting
for Wife’s receipt of $1,719 in child support, Wife claimed unmet
need exceeding $2,400 per month. We see no abuse of discretion in
the district court’s settling on the substantially lower amount of
$1,500 per month. See Stonehocker v. Stonehocker, 2008 UT App 11,
¶ 39, 176 P.3d 476 (“The trial court has significant discretion in
fashioning temporary support during the pendency of a divorce
action.”).
¶24 It is uncontested that Husband’s actual income did drop due
to the loss of his second job. However, nowhere in Husband’s
motion or supporting affidavit did Husband assert that this loss of
income rendered him incapable of paying alimony in the amount
of $2,000 or any other amount. At the motion hearing, Husband
asserted that he could not afford to pay $2,000 per month but never
specified to the court how much he could afford with his substan‐
20100764‐CA 10 2013 UT App 84Donnelly v. Donnelly
tial remaining income. Under these circumstances, the district
court’s significant reduction in temporary monthly alimony from
$2,000 to $1,500—an amount much less than Wife’s claimed unmet
need—appears to fall well within the district court’s “significant
discretion.” See id. For these reasons, we will not disturb or revisit
the Amended Temporary Order.
C. The Memorandum Decision
¶25 Husband argues that the district court’s permanent monthly
alimony award of $1,000, as explained and ordered in the Septem‐
ber 2009 Memorandum Decision, was also an abuse of discretion.
Husband argues that the district court failed to take into account
the financial assistance rendered to Wife by her parents, failed to
properly limit Wife’s standard of living to the $1,822 per month
standard that she enjoyed at the time of the parties’ separation, and
abused its discretion by setting Husband’s support obligations
higher than his net income.
¶26 We disagree with Husband’s assertion that the district court
failed to consider Wife’s parent’s financial assistance to her. To the
contrary, the Memorandum Decision explicitly recognized that
Wife “lived and continues to live with her parents” and that Wife
claimed “expenses of $5703 per month, again as noted without
paying for housing.” Thus, the district court recognized that Wife’s
financial need was significantly less than it would have been
without her parents’ assistance, and the court employed that lower
need figure in making its ultimate decision on alimony. The district
court acknowledged that “[o]ther than her parents’ assistance,
probably quite regularly, [Wife] has no other source of funds,” but
it also found that Wife’s family is “not, of course, responsible for
her and the court does not consider their abilities to provide help
in the calculation of alimony.” Thus, the district court clearly took
20100764‐CA 11 2013 UT App 84Donnelly v. Donnelly
Wife’s parents’ assistance into account in making its alimony
decision.5
¶27 Husband next argues that the district court should have
limited Wife’s financial need to the amount of her need at the time
of the parties’ separation. According to Husband, this amount
should have been the $1,812—not including housing—reflected in
her initial answers to interrogatories. Utah’s alimony statute speaks
specifically to this issue:
As a general rule, the court should look to the stan‐
dard of living, existing at the time of separation, in
determining alimony in accordance with Subsection
(8)(a). However, the court shall consider all relevant
facts and equitable principles and may, in its discre‐
tion, base alimony on the standard of living that existed at
the time of trial.
5. Husband asserts that the district court “should have treated
[Wife’s parents’] financial assistance as income” to Wife. However,
Husband provides no Utah authority for the proposition that
voluntary financial assistance between family members must be
treated as income for alimony purposes. Further, the district court’s
finding that Wife’s parents are “not, of course, responsible for her”
recognized that Wife’s parents were under no legal obligation to
continue with their financial assistance and that such assistance
could terminate at any time. Cf. Ebbert v. Ebbert, 744 P.2d 1019, 1023
(Utah Ct. App. 1987) (“Plaintiff argues the wealth of defendant’s
parents, who made large gifts of money to defendant during the
marriage, should have been considered by the trial court. Such a
consideration would be tantamount to imputing the wealth and
income of her parents to defendant, and thereby imposing a duty
of child support on the grandparents.”). For these reasons, we are
unpersuaded that the district court abused its discretion in
declining to treat this voluntary assistance as income.
20100764‐CA 12 2013 UT App 84Donnelly v. Donnelly
Utah Code Ann. § 30‐3‐5(8)(c) (LexisNexis Supp. 2012) (emphasis
added). Here, the district court in its discretion considered
circumstances arising after the parties’ separation, most notably the
additional and ongoing expenses incurred due to the autism
diagnosis of the parties’ youngest child.6
¶28 Husband also briefly argues that the district court erred
when it set his total support obligations in an amount greater than
his net income. Husband acknowledges that the district court
found that he had monthly income of $7,031 and monthly expenses
of $4,100, leaving nearly $3,000 per month available to pay his
combined child support and alimony payment of $2,348 per month.
Husband then asserts that his net income was only $5,700 per
month, citing to paycheck evidence that was allegedly submitted
at trial. Husband argues that his actual income left him only $1,600
per month to pay $2,348 in support obligations.
¶29 This argument amounts to a challenge to the district court’s
factual finding that Husband earned $7,031 per month. However,
Husband’s entire argument in this regard is the following asser‐
tion: “However, [Husband] had a net income of $5,700 before
support payments.” Although Husband provides a citation to
“Addendum, Trial Exhibit 45, Paychecks,” the record on appeal
does not include the parties’ trial exhibits. Husband’s appellate
brief addendum does contain a single printout, not marked as a
6. We agree with the concurring opinion’s concern that expenses
such as the autism‐related expenses in this case should ordinarily
be addressed under the rubric of child support rather than treated
as a spouse’s personal financial need for purposes of setting
alimony. See Farnsworth v. Farnsworth, 2012 UT App 282, ¶¶ 27–28,
288 P.3d 298. Here, however, the parties litigated the issue as one
of alimony, and neither party challenges that treatment on appeal.
Accordingly, for purposes of our analysis, we accept the district
court’s use of the autism‐related expenses as a factor in
determining Wife’s financial need.
20100764‐CA 13 2013 UT App 84Donnelly v. Donnelly
trial exhibit, purporting to represent Husband’s paycheck informa‐
tion from June 5, 2009. Assuming that this document is even in the
record, Husband fails to explain how it demonstrates that his
monthly income as of the September 2009 trial was $5,700 rather
than $7,031 per month. Husband’s summary argument fails to
convince us that the district court clearly erred in determining
Husband’s income and, as a result, his ability to pay alimony in the
amount of $1,000 per month. See, e.g., Henshaw v. Henshaw, 2012 UT
App 56, ¶ 10, 271 P.3d 837 (“We review challenges to findings of
fact for clear error.”).7
II. Travel Expenses
¶30 Husband next argues that the district court erred when it
refused to order Wife to reimburse him for portions of the chil‐
dren’s travel expenses pursuant to Utah’s relocation statute, Utah
Code section 30‐3‐37. Husband argues that the district court
misinterpreted the relocation statute to preclude reimbursement of
travel expenses where, as here, the noncustodial parent is not
current on all support obligations but has not been found in
contempt. Husband further argues that the district court’s denial
of travel expense reimbursement was inequitable and represented
an abuse of the court’s discretion.
¶31 Utah Code section 30‐3‐37 governs parental relocation,
which is defined as a parent “moving 150 miles or more from the
residence of the other parent.” Utah Code Ann. § 30‐3‐37(1)
(LexisNexis Supp. 2012). Section 30‐3‐37(11) specifically addresses
7. To the extent that Husband’s arguments pertaining to permanent
alimony rely on allegedly inadequate factual findings, Husband
did not object to the Memorandum Decision or otherwise complain
to the district court about inadequate findings. Therefore, just as
with the temporary alimony awards, any argument premised on a
deficiency in the district court’s factual findings was not preserved
as an issue for appeal. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985.
20100764‐CA 14 2013 UT App 84Donnelly v. Donnelly
the allocation of travel expenses for children affected by a reloca‐
tion:
Unless otherwise ordered by the court the relocating
party shall be responsible for all the child’s travel
expenses relating to [holiday visitation under subsec‐
tions 30‐3‐37(6)(a) and (b)] and ½ of the child’s travel
expenses relating to [summer visitation under
subsection 30‐3‐37(6)(c)], provided the noncustodial
parent is current on all support obligations. If the
noncustodial parent has been found in contempt for
not being current on all support obligations, the
noncustodial parent shall be responsible for all of the
child’s [statutory holiday and summer] travel ex‐
penses . . . unless the court rules otherwise.
Id. § 30‐3‐37(11). Husband argues that this language requires an
order of reimbursement unless the noncustodial parent has been
found in contempt or, put another way, requires a finding of
contempt before reimbursement can be denied. Husband argues
that the district court’s order misinterpreted section 30‐3‐37(11) to
allow for the denial of reimbursement despite the absence of a
finding of contempt.
¶32 We disagree with Husband’s interpretation of section 30‐3‐
37(11). Section 30‐3‐37(11) requires a reimbursement order in only
one circumstance, that of a noncustodial parent who is current on
support payments.8 By implication, the statute imposes no
requirement that a noncustodial parent who is not current on
8. We acknowledge that, even where a noncustodial parent is
current on support payments, the district court is expressly granted
the authority to depart from the otherwise mandated result that
reimbursement be ordered. See Utah Code Ann. § 30‐3‐37(11)
(LexisNexis Supp. 2012) (“Unless otherwise ordered by the court
. . . .”).
20100764‐CA 15 2013 UT App 84Donnelly v. Donnelly
support be awarded reimbursement. Because the statute simply
does not address the allocation of travel expenses in situa‐
tions—such as Husband’s—where a noncustodial parent is behind
on payments but has not been found in contempt, the district court
retains its ordinary degree of discretion in allocating travel costs in
those circumstances. See generally Brooks v. Brooks, 881 P.2d 955, 963
(Utah Ct. App. 1994) (“[W]e cannot say the trial court abused its
discretion in modifying the order to provide for an equal division
of visitation costs.”). We see nothing in the statute that limits the
district court’s discretion to deny reimbursement merely because
a noncustodial parent who is not current on support payments has
not been found in contempt.
¶33 Contrary to Husband’s suggestion on appeal, the district
court did not rule that section 30‐3‐37(11) “prohibited [Husband]
from receiving any reimbursement.” Rather, the district court’s
Memorandum Decision stated, “Were [Husband] current on his
child support obligation, he would be entitled to substantial
reimbursement. Under the facts of this case and the relocation
statute, he is not entitled to any reimbursement or credit.” The
Decree of Divorce further stated, “As a result of his arrears in
spousal support, [Husband] is not awarded any reimbursement for
travel expenses he has paid.” Nothing in these rulings indicates
that the district court interpreted section 30‐3‐37(11) to prohibit an
award of relocation reimbursement in cases of non‐contemptuous
support arrearage.
¶34 Rather, the district court relied on Husband’s substantial
arrearage as a reason to exercise its discretion and deny Husband’s
reimbursement request. Nothing in Utah Code section 30‐3‐37(11)
prohibits the district court from considering a noncustodial
parent’s arrearages in making a discretionary ruling about travel
reimbursement. To the contrary, the statute makes the status of a
parent’s support payments a central part of the reimbursement
analysis, and we see no abuse of the district court’s discretion in
denying Husband’s request on that ground.
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¶35 Husband also argues that the district court’s travel expenses
ruling was inequitable and an abuse of discretion under the
circumstances. Husband raises multiple issues in support of this
argument, but he failed to argue most of these issues to the district
court. Arguments based on issues that were not presented to the
district court are unpreserved, and we do not consider them.9 See
Allen v. Ciokewicz, 2012 UT App 162, ¶ 26, 280 P.3d 425 (“To
preserve an issue for appeal, an appellant must present it to the
trial court ‘in such a way that the trial court has an opportunity to
rule on that issue.’” (quoting 438 Main St. v. Easy Heat, Inc., 2004 UT
72, ¶ 51, 99 P.3d 801)).
¶36 The only issue that Husband did present to the district court
was his argument that denying travel reimbursement would add
“insult to injury” in light of Wife’s cross‐country move for the
purpose of separating Husband from the parties’ children. Hus‐
band’s dismay with Wife’s motives is understandable. However,
we cannot say that the district court abused its discretion in
denying travel reimbursement for the court’s stated reason that
Husband was in arrears on his support. See generally Brooks, 881
P.2d at 963 (reviewing a district court’s order apportioning
visitation costs only for an abuse of discretion).
¶37 In sum, the absence of a contempt finding against Husband
did not preclude the district court from denying travel expense
reimbursement under Utah Code section 30‐3‐37(11). The district
court’s decision to deny reimbursement in light of Husband’s
9. These unpreserved issues include Husband’s arguments that his
support obligations had been improperly inflated due to a clerical
error and other errors by the district court; his arguments that he
had paid the children’s full medical insurance premiums and
$12,000 in marital debt that should have been paid by Wife; and his
argument that Wife’s payment of the requested travel expenses
would have allowed Husband to pay more towards his support
obligation.
20100764‐CA 17 2013 UT App 84Donnelly v. Donnelly
significant support arrearage is consistent with section 30‐3‐37(11)’s
emphasis on support status, and Husband has failed to establish
that the court’s ruling on travel expenses was inequitable or an
abuse of discretion. For these reasons, we affirm the district court’s
travel expenses ruling.
III. Medical Insurance Premiums
¶38 Husband’s final issue on appeal is that the district court
erred when it required him to pay all of the medical insurance
premiums for the parties’ children during the pendency of the
proceedings and failed to order Wife to reimburse him for one half
of those premiums in the final decree. This issue comes before us
on the district court’s denial of Husband’s rule 59(e) motion to
amend the Decree of Divorce, a ruling that we review only for an
abuse of the district court’s broad discretion. See Crestwood Cove
Apts. Bus. Trust v. Turner, 2007 UT 48, ¶ 40, 164 P.3d 1247 (stating
that “a trial court has broad discretion to decide whether to grant
relief under [rule 59]”).
¶39 The district court denied Husband’s motion “for the reasons
stated by [Wife] in her opposition,” and we briefly summarize that
opposition here. Wife argued that the district court’s 2005 Tempo‐
rary Order directed both parties to maintain insurance policies then
in effect, which included Husband’s medical insurance policy
covering the children. Although the Temporary Order provided for
each party to pay one half of the children’s co‐pays and uncovered
medical expenses, it did not provide for the splitting or reimburse‐
ment of their medical insurance premiums. Husband then failed to
raise the medical insurance premiums issue again prior to or
during trial, nor did he raise the issue after trial when Wife
successfully reopened the record to address the issue of Husband’s
retirement account. Wife argued that, in light of these facts,
Husband should not be allowed to raise the issue of reimbursement
for the children’s medical insurance premiums for the first time in
a post‐judgment motion to amend the Decree of Divorce.
20100764‐CA 18 2013 UT App 84Donnelly v. Donnelly
¶40 We agree with the district court that Wife’s opposition states
adequate grounds for the denial of Husband’s rule 59(e) motion. It
is readily apparent that both the parties and the court had strived
mightily to accomplish a comprehensive resolution of the parties’
disputes over financial matters and reimbursement of medical
expenses prior to the issuance of the Decree of Divorce. Husband’s
failure to raise the issue at some point before the conclusion of that
lengthy process acted as a waiver of any statutory right that he may
have had to have Wife equally share the costs of the children’s
medical insurance.10 See 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually
deemed waived.”); see also L.A. Young Sons Constr. Co. v. County of
Tooele, 575 P.2d 1034, 1040 (Utah 1978) (“The trial court did not err
. . . in denying plaintiff’s motion to amend the findings of fact and
conclusions of law, since the matters proposed were an attempt to
interpret the evidence according to plaintiff’s theory of the case and
to interject issues which were not tried.” (footnote omitted)). In
light of this waiver, the district court acted within its broad
discretion in denying Husband’s rule 59(e) motion.
10. Husband argues on appeal that Utah Code section 78B‐12‐
212(3) mandates that every child support order “shall require each
parent to share equally the out‐of‐pocket costs of the premium
actually paid by a parent for the children’s portion of insurance
unless the court finds good cause to order otherwise.” See Utah
Code Ann. § 78B‐12‐212(3) (LexisNexis 2012). However, we see no
indication that Husband ever referred the district court to section
78B‐12‐212(3) outside of his motion to amend the Decree of
Divorce, and thus any failure by the district court to follow that
section at the time of the Temporary Order or through its issuance
of the divorce decree is unpreserved as an issue for appeal. See 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801.
20100764‐CA 19 2013 UT App 84Donnelly v. Donnelly
IV. Valuation of Husband’s Retirement Plan
¶41 On cross‐appeal, Wife argues that the district court abused
its discretion by dividing Husband’s retirement account between
the parties based on its value as of the date of their separation,
rather than the date of the Decree of Divorce. Wife is correct that,
“[a]s a general rule, the marital estate is valued at the time of the
divorce decree,” Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct.
App. 1993); see also Berger v. Berger, 713 P.2d 695, 697 (Utah 1985),
and that “any deviation from the general rule must be supported
by sufficiently detailed findings of fact that explain the trial court’s
basis for such deviation,” Rappleye, 855 P.2d at 262. Here, however,
the district court did explain its variation from the general rule, and
Wife has not persuaded us that the district court’s explanation was
inadequate.
¶42 In its December 2009 Supplemental Memorandum Decision,
the district court made factual findings that Husband had opened
the retirement account in 1998—during the marriage—and
continued to maintain the account through his employer as of the
time of the ruling. The court found that the account had been
funded entirely by Husband’s employer’s contributions and was
valued at $65,478 at the time of the parties’ separation and $125,489
as of September 2009, representing an increase in value since the
separation of about $60,000.11 The court also found that the account
was a marital asset and was presumptively to be divided evenly.
¶43 Based on these factual findings, the district court concluded
that the retirement account was to be divided evenly between the
parties based on its value at the time of the separation. The district
court provided the following explanation of its valuation decision:
11. The district court also found that the fund was increasing,
presumably largely due to employer contributions, at the rate of
about $900 per month.
20100764‐CA 20 2013 UT App 84Donnelly v. Donnelly
While the presumptive date of valuation is the
time of the decree, that decree has yet to be achieved.
The court does not fault anyone here for this delay,
but the separation here is a full five years ago, minus
a few days. During that time [Husband] has worked
and his employer has contributed to this fund. It is
often that in a marriage one party works outside the
home and one works inside the home, thus enabling
the other to work and in some cases accumulate a
retirement fund. That happened here during the
marriage . . . . [But] after separation, these parties
were not only a failed partnership, but a partnership
fully at odds with each other. [Husband] has been
accused of serious misconduct. [Husband] did not
see the children for lengthy periods. [Wife] did
nothing, nothing whatever, to contribute to the
accumulation of the retirement fund during this long
five year separation. [Husband] continued to work
and his employer continued to fund the retirement
account. The court sees no reason in equity why
[Wife] should benefit from this arrangement as she
has not, during this time, been contributing to [Hus‐
band’s] ability to work and support the family.
The court believes that the date of separation
should be the valuation date given all of the circum‐
stances of this case as more fully explained in the
[September 16, 2009 Memorandum Decision].
Thus, the district court relied on a combination of factors to
determine the valuation date: Wife’s failure to contribute to the
account’s increase in value during the parties’ separation; Wife’s
failure to contribute to Husband’s ability to work during the
separation; the extraordinarily long duration of the separation; the
hostilities between the parties and Wife’s actions during the
separation; and the “circumstances of this case” as more fully
explained in the court’s earlier Memorandum Decision.
20100764‐CA 21 2013 UT App 84Donnelly v. Donnelly
¶44 Wife argues that the court’s explanation of its decision is
insufficient because, “other than its statements about [Wife] not
contributing during the separation to the accumulation of the
retirement or to contribute to [Husband’s] ability to work and
support the family, the court made no specific findings to support
its decision to vary from the established rule.” Wife also cites Kemp
v. Kemp, 2001 UT App 157U, an unpublished memorandum
decision in which this court found that the district court had
abused its discretion by valuing retirement accounts at the date of
separation rather than the date of the divorce decree.
¶45 We are not persuaded that the district court’s explanation of
its valuation decision is inadequate. The district court made
findings that the substantial increase in the retirement account’s
value between the time of separation and the time of divorce was
due to Husband’s employer’s contributions to the fund over the
lengthy period of the parties’ separation and that Wife had done
“nothing whatever” to contribute to the fund’s increase in value
over that time. These findings distinguish this case from Kemp, in
which the district court made no findings about the parties’ post‐
separation contributions to each other’s retirement accounts. See
2001 UT App 157U, para. 10. Other Utah cases addressing the
valuation timing issue have often dealt with situations involving
assets that increased or decreased in value following separation for
reasons other than one party’s post‐separation contributions.12 See
Berger, 713 P.2d at 697 (valuing corporate stock); Shepherd v.
Shepherd, 876 P.2d 429, 432–33 (Utah Ct. App. 1994) (marital estate
generally); Rappleye, 855 P.2d at 262–63 (cash account); Dunn v.
Dunn, 802 P.2d 1314, 1319–20 (Utah Ct. App. 1990) (retirement
accounts brought into a marriage by the husband); Morgan v.
Morgan, 795 P.2d 684, 688 (Utah Ct. App. 1990) (bank accounts);
Peck v. Peck, 738 P.2d 1050, 1051–52 (Utah Ct. App. 1987) (family
12. Wife makes no argument on appeal that she is entitled to half
of any post‐separation interest or other appreciation in the
account’s value attributable to pre‐separation contributions.
20100764‐CA 22 2013 UT App 84Donnelly v. Donnelly
business). Wife has failed to identify a single Utah appellate
decision that has expressly granted a spouse a marital share of the
other spouse’s post‐separation contributions to his or her retire‐
ment account.
¶46 Additionally, the district court’s Supplemental Memoran‐
dum Decision relies on several factors that Wife simply fails to
acknowledge on appeal. One of these factors is the post‐separation
hostilities between the parties, including Wife’s accusations of
“serious misconduct” against Husband and Wife’s refusal to allow
visitation between Husband and the children for “lengthy peri‐
ods.”13 The district court also relied on “all of the circumstances of
this case as more fully explained in” the court’s prior—and quite
detailed—Memorandum Decision. In light of Wife’s failure to
analyze why these grounds are insufficient to support the district
court’s valuation decision, her argument falls short of demonstrat‐
ing an abuse of discretion. Cf. State v. Hurt, 2010 UT App 33, ¶ 16,
227 P.3d 271 (declining to disturb lower court ruling when
appellate briefing failed to address the grounds for the decision
below); see also Utah R. App. P. 24(a)(9).
¶47 In sum, Wife has failed to persuade us that the district
court’s decision to value Husband’s retirement account as of the
date of the parties’ separation was not adequately supported and
explained by the district court. The district court gave sound
reasons for its decision, and Wife has not demonstrated that the
ruling represents “a clear and prejudicial abuse of discretion” by
the district court. Trubetzkoy v. Trubetzkoy, 2009 UT App 77, ¶ 8, 205
P.3d 891 (citation and internal quotation marks omitted). Accord‐
ingly, we affirm the district court’s decision to value the account as
of the time of separation rather than at the date of the decree.
13. We note that Wife’s denial of Husband’s visitation rights
resulted in a determination by the district court that Wife was in
contempt of court.
20100764‐CA 23 2013 UT App 84Donnelly v. Donnelly
CONCLUSION
¶48 Husband has not demonstrated any abuse of the district
court’s discretion in making its temporary or permanent alimony
awards, nor has he persuaded us of any error as regards the district
court’s treatment of medical insurance premiums or travel
expenses. On cross‐appeal, Wife has failed to demonstrate error
pertaining to the valuation of Husband’s retirement accounts. For
these reasons, we affirm the district court in all respects.
ORME, Judge (concurring):
¶49 I concur in the court’s opinion, with one reservation. Wife’s
claimed expenses for the parties’ youngest child, such as for
“special foods” and “lots of therapy,” are not relevant in calculat‐
ing alimony; they are factors to be considered in fixing child
support. See Farnsworth v. Farnsworth, 2012 UT App 282, ¶ 27, 288
P.3d 298 (“As a general rule, the expenses related to minor children
should be included in the child support award, not as part of the
alimony obligation.”). That said, no prejudice resulted to Husband
from this conceptual mistake. First, the district court reduced the
amount it would otherwise have awarded as alimony by reason of
“the rather imprecise nature of the true expenses of [Wife] particu‐
larly as they relate to [the parties’ youngest child].” Second,
Husband would be better off having these expenses considered in
an alimony rather than a child support context, given that alimony
is tax deductible, see 26 U.S.C.A. § 71 (West 2011), while child
support is not, see id., and child support does not go away until a
child becomes an adult, see Carlson v. Carlson, 584 P.2d 864, 865
(Utah 1978), while alimony typically lasts only as long as the
marriage did, see Utah Code Ann. § 30‐3‐5(8)(h) (LexisNexis Supp.
2012), and may terminate even sooner upon remarriage or other
statutorily described circumstances, see id. § 30‐3‐5(a).
¶50 In addition to noting the foregoing concern, I wish to
highlight an important matter of statutory interpretation that
20100764‐CA 24 2013 UT App 84Donnelly v. Donnelly
should not escape the attention of our domestic relations practitio‐
ners. As discussed in Section II of the lead opinion, section 30‐3‐
37(11) actually defines three categories of noncustodial parents
when it comes to requiring the “relocating party” with custody to
share in the cost of travel expenses necessary to facilitate visitation.
Id. § 30‐3‐37(11). First, there are those noncustodial parents who are
current in their support obligations. Id. They are presumptively
entitled to reimbursement as provided in the statute. Second, there
are those noncustodial parents who are not only in arrears, but
who have “been found in contempt for not being current on all
support obligations.” Id. They are presumptively not entitled to
reimbursement. A cursory reading of the statutory provision may
suggest there are just these two categories, but as ably explained in
the lead opinion, there is a third category: those noncustodial
parents who are not “current on all support obligations” but who
also have not “been found in contempt for not being current on all
support obligations.” Id. (emphasis added). With respect to this
third group, the district court has broad discretion to decide what
is most appropriate under all the circumstances, as it did in this
case.
20100764‐CA 25 2013 UT App 84