Tobler v. Tobler , 337 P.3d 296 ( 2014 )

2014 UT App 239_________________________________________________________
THE UTAH COURT OF APPEALS
BRITTNEY TOBLER,
Petitioner and Appellee,
v.
RUSSELL TODD TOBLER,
Respondent and Appellant.
Opinion
No. 20120912-CA
Filed October 9, 2014
Sixth District Court, Richfield Department
The Honorable George M. Harmond
No. 104600270
J. Bryan Jackson, Attorney for Appellant
Michael R. Labrum and Johanna Williams,
Attorneys for Appellee
JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE
STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
PEARCE, Judge:
¶1 Russell Todd Tobler (Husband) appeals from the district
court’s decree of divorce, findings of fact, and conclusions of law.
We affirm the district court in all respects but one. We determine
that, on the record before us, we cannot discern whether the district
court properly calculated Husband’s total income for child support
purposes. We remand this matter for the entry of further findings
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah R. Jud.
Admin. 11-201(6).
Tobler v. Tobler
regarding Husband’s income and, if warranted by those findings,
a recalculation of the child support award.
BACKGROUND
¶2 Husband and Brittney Tobler (Wife) married on October 4,
2007, in Manti, Utah. They had a daughter in April 2010. Wife was
pregnant with twins when she filed for divorce on December 15,
2010. The twins, a boy and a girl, were born in February 2011.
¶3 Wife’s divorce petition sought sole physical custody and
joint legal custody of the children. She also sought alimony, the
equitable division of the parties’ real and personal property, and a
one-half share in Husband’s pension, profit-sharing plan, and other
retirement benefits. Wife also requested that Husband be ordered
to assume and pay all of the marital debts and obligations.
¶4 Along with her petition, Wife filed a motion for temporary
relief, arguing that she was unable to work due to her pregnancy.
She requested possession and use of the marital home, reasonable
temporary child support and alimony, and an order that Husband
service the marital debt during the pendency of the action.
Husband agreed that child support was appropriate and that he
should be responsible for the marital debt, but argued that his debt
service should ultimately be factored into the equitable division of
the parties’ property. Husband also opposed any award of
temporary alimony, arguing that Wife possessed four post-high-
school degrees and was capable of working and supporting herself,
particularly if Husband made the marital debt payments. Husband
also opposed Wife’s request for the marital home, arguing that she
had already moved in with her mother.
¶5 In May 2011, while Wife’s motion for temporary relief was
pending, Husband filed a motion to bifurcate the proceedings,
asking the district court to grant the parties an immediate divorce
and reserve all other issues for future disposition. Husband argued
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that bifurcation would facilitate resolution of the financial
obligations that were a “bleeding wound” upon the marital estate,
prevent Wife from holding Husband’s life “hostage,” and give
Husband “some tranquility in his life.” Wife initially failed to
respond to the bifurcation motion, but when Husband filed a notice
to submit for decision, Wife filed an opposition arguing that
bifurcation would create an undue delay in the proceedings and
increase their cost.
¶6 Following a September 2011 hearing, the court issued
temporary orders granting Wife custody of the children, ordering
Husband to pay child support of $2,033 per month, and awarding
statutory parent-time to Husband. The court awarded Wife sole
possession of the marital home, ordered Husband to maintain all
marital debt except for the payments on a single vehicle, and
awarded Wife temporary spousal support of $2,500 per month.
¶7 The district court denied Husband’s bifurcation motion,
determining that Husband had failed to demonstrate “a
convenience or necessity issue that would be solved by
bifurcation.” The court further explained that the bifurcation
decision was a matter of the court’s discretion and that, in its
experience, bifurcation tended to increase delay. The court also
expressed its concern that bifurcation might affect issues such as
Wife’s access to health insurance.
¶8 The district court held a bench trial in April 2012 and issued
a memorandum decision in June 2012. The court awarded Wife sole
physical custody of the children and awarded Husband and Wife
joint legal custody. Wife was awarded child support of $2,048 per
month based on Husband’s monthly income of $12,867. The court
calculated Husband’s monthly income by averaging the income on
his last three tax returns and adding $1,285 per month in rental
income generated from a house Husband owned in St. George,
Utah.
¶9 The district court also awarded Wife alimony of $2,000 per
month for a period of time equal to the length of the marriage as of
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the date of the memorandum decision—four years and eight
months. The district court rejected Wife’s argument that alimony
should be extended beyond the length of the marriage due to
Wife’s continuing educational needs but also rejected Husband’s
argument that the court should count Husband’s temporary
alimony payments against the total period of alimony awarded.
¶10 Husband objected to the memorandum decision, raising
issues relating to the award of parent-time, the calculation of his
income, the calculation and length of alimony, property division,
and child support. The district court issued an order overruling
most of Husband’s objections on September 28, 2012.2 The court
issued its final decree of divorce that same day. The divorce decree
largely tracked the relief granted in the prior memorandum
decision and ordered Husband and Wife to each bear their own
attorney fees and costs. Husband appeals.
ISSUES AND STANDARDS OF REVIEW
¶11 Husband argues that the district court erred when it denied
his motion to bifurcate the proceedings and entered its temporary
orders awarding spousal support to Wife during the pendency of
the action, requiring Husband to service the bulk of the marital
debt, and forbidding the sale of marital assets. “Trial courts have
broad discretion to bifurcate trials, and we review the [district]
court’s bifurcation [decision] in this case for an abuse of that
discretion.” Parker v. Parker, 2000 UT App 30, ¶ 5, 996 P.2d 565. The
abuse of discretion standard also applies to our review of the
district court’s temporary orders. Stonehocker v. Stonehocker, 2008
UT App 11, ¶ 39, 176 P.3d 476 (“The trial court has significant
2. The district court did, upon Husband’s objection, reduce
Husband’s available income for alimony purposes by $500 per
month to reflect rent payments he made to his mother. It also
clarified the value of Husband’s 401(k) account as of the date of the
marriage.
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discretion in fashioning temporary support during the pendency
of a divorce action.”).
¶12 Husband also raises multiple arguments challenging the
various provisions of the final decree of divorce, including
arguments relating to parent-time, child support, alimony, and
property division. We review a district court’s decisions in these
areas for abuse of discretion. See Bell v. Bell, 2013 UT App 248, ¶ 11,
312 P.3d 951 (“We review a trial court’s child support order for an
abuse of discretion.” (citation and internal quotation marks
omitted)); Boyer v. Boyer, 2011 UT App 141, ¶¶ 8–9, 259 P.3d 1063(discussing our standards of review of property division and
alimony issues); Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct.
App. 1998) (“[W]e will not disturb the trial court’s visitation
determination absent a showing that the trial court abused its
discretion.”).
ANALYSIS
I. Marshaling
¶13 As an initial matter, we address Wife’s contention that
Husband’s claims on appeal must fail because they challenge the
district court’s factual findings and Husband has not marshaled the
evidence in support of the challenged findings. Wife relies on prior
cases—which were good law at the time the briefs in this matter
were submitted—that treated an appellant’s failure to marshal as
a type of procedural default that precluded this court from even
reaching the merits of arguments that were not supported by
adequate marshaling. See, e.g., Chen v. Stewart, 2004 UT 82, ¶ 19, 100
P.3d 1177 (“If the evidence is inadequately marshaled, this court
assumes that all findings are adequately supported by the
evidence.”).
¶14 However, after Wife submitted her appellate brief, the Utah
Supreme Court issued its decision in State v. Nielsen, 2014 UT 10,
326 P.3d 645. In Nielsen, the supreme court expressly “repudiate[d]
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the default notion of marshaling sometimes put forward in our
cases and reaffirm[ed] the traditional principle of marshaling as a
natural extension of an appellant’s burden of persuasion.” Id. ¶ 41.3
The supreme court explained that marshaling remains an
important part of successfully challenging factual findings on
appeal because “a party challenging a factual finding or sufficiency
of the evidence to support a verdict will almost certainly fail to
carry its burden of persuasion on appeal if it fails to marshal.” Id.
¶ 42. But the supreme court also instructed appellees and appellate
courts alike to address the merits of an appellant’s arguments
without relying on marshaling as a “stand-alone basis” for rejecting
claims on appeal. Id. ¶ 44. “The focus should be on the merits [of
the arguments presented], not on some arguable deficiency in the
appellant’s duty of marshaling.” Id. ¶ 42.
¶15 In light of Nielsen, we decline Wife’s invitation to summarily
reject Husband’s arguments for his alleged lack of marshaling.
Rather, we address the merits of Husband’s arguments and
consider any marshaling deficiencies as part of our overall
evaluation of whether Husband has met his burden of persuasion
on appeal.
II. Bifurcation and Temporary Orders
¶16 Husband argues that the district court erred when it denied
his motion to bifurcate the proceedings. Husband’s motion asked
the district court to terminate the parties’ marriage by entering a
decree of divorce while reserving all other issues for future
resolution. The reasons Husband presented to the district court in
support of his motion were that bifurcation would help to resolve
the financial obligations that were a “bleeding wound” upon the
marital estate, prevent Wife from holding Husband’s life
3. The supreme court also expressly repudiated “the requirements
of playing ‘devil’s advocate’ and of presenting ‘every scrap of
competent evidence’ in a ‘comprehensive and fastidious order.’”
State v. Nielsen, 2014 UT 10, ¶ 43, 326 P.3d 645 (citation omitted).
20120912-CA 6 2014 UT App 239Tobler v. Tobler
“hostage,” and give Husband “some tranquility in his life.”4
Husband now argues that the district court erred in denying his
motion, because both parties wanted a divorce and because
bifurcation would have furthered convenience and avoided
prejudice.
¶17 The district court may order separate trials on any claims or
issues “in furtherance of convenience or to avoid prejudice.” Utah
R. Civ. P. 42(b). “Trial courts have broad discretion to bifurcate
trials, and we review the [district] court’s bifurcation in this case for
an abuse of that discretion.” Parker v. Parker, 2000 UT App 30, ¶ 5,
996 P.2d 565. The district court’s written order denied Husband’s
motion on the ground that “[t]here needs to be some showing that
there is a convenience or necessity issue that would be solved by
bifurcation and the court cannot find that in this case.” We agree
with Husband that the district court’s articulation of the necessary
showing—“convenience or necessity” rather than “in furtherance
of convenience or to avoid prejudice”—did not track rule 42(b)’s
precise language. However, that articulation did not cause the
district court to abuse its broad discretion to manage the cases
before it.
¶18 At the motion hearing, the district court explained that, in
the court’s experience, bifurcation “tends to delay things” and
stated that “this case is not moving very fast anyway.” The court
also expressed concern about the effect that bifurcation might have
on Wife’s ability to obtain health insurance and similar benefits.
The district court’s decision to deny Husband’s bifurcation motion
for these reasons fell within the bounds of the court’s discretion.
4. Husband did not argue to the district court that bifurcation was
necessary to limit the ultimate duration of the time period for
which he could be ordered to pay alimony. See Utah Code Ann.
§ 30-3-5(8)(j) (LexisNexis 2013) (limiting alimony awards to the
duration of the marriage absent a finding of extenuating
circumstances). We address Husband’s challenge to the duration
of the district court’s permanent alimony award later in this
opinion. See infra ¶¶ 41–42.
20120912-CA 7 2014 UT App 239Tobler v. Tobler
¶19 In a related argument, Husband argues that the district
court’s temporary orders had the effect of holding him “hostage”
during the pendency of the litigation due to the requirements that
Husband pay temporary child support and alimony, service the
bulk of the marital debt, and refrain from selling any property.
Husband argues that these requirements were prejudicial to him
and that this prejudice “should have been considered by the trial
court at the time of denying bifurcation.”
¶20 We cannot dispute Husband’s position that, from his
standpoint, these requirements were prejudicial. However,
Husband did not clearly present this prejudice argument to the
district court in support of his bifurcation motion. Even if he had,
the district court possessed the discretion to conclude that any
prejudice to Husband was outweighed by the potential for a more
expeditious resolution in an unbifurcated proceeding. Moreover,
even if the district court had entered an order of bifurcation, there
may still have been a need for temporary orders to govern the
parties’ affairs during litigation of the remaining issues. See Utah
Code Ann. § 30-3-3(3) (LexisNexis 2013) (“In [a divorce action,] the
court may order a party to provide money, during the pendency of
the action, for the separate support and maintenance of the other
party and of any children in the custody of the other party.”);
McPherson v. McPherson, 2011 UT App 382, ¶¶ 5–10, 18, 265 P.3d
839 (acknowledging that temporary alimony award “remained in
effect” despite prior entry of bifurcated divorce decree).
¶21 As to the substantive provisions of the temporary orders, the
district court “has significant discretion in fashioning temporary
support during the pendency of a divorce action.” Stonehocker v.
Stonehocker, 2008 UT App 11, ¶ 39, 176 P.3d 476. Husband has not
persuaded us that any aspect of the temporary orders constituted
an abuse of the district court’s significant discretion, and we
therefore affirm those orders. See generally State v. Robison, 2006 UT
65, ¶ 21, 147 P.3d 448 (discussing appellants’ burdens on appeal).
20120912-CA 8 2014 UT App 239Tobler v. Tobler
III. Parent-Time
¶22 Husband argues that the district court erred in awarding
parent-time. Although Husband’s exact argument is unclear, he
appears to argue that the district court erred in awarding him
parent-time with the parties’ oldest daughter, who was not yet five
years old, in accordance with the statutory minimum established
by Utah Code section 30-3-35.5 rather than under the more
generous provisions of section 30-3-35. See Utah Code Ann. § 30-3-
35 (LexisNexis 2013) (establishing minimum parent-time for
children ages five to eighteen); id. § 30-3-35.5 (establishing
minimum parent-time for children under five years of age).
Husband argues this was improper because both he and Wife
agreed that he should have additional parent-time with the eldest
child.
¶23 In overruling Husband’s objection on this issue, the district
court stated,
Based on the evidence at trial, the court found it was
in all the children’s best interests that parent time be
based on the statutory time for the youngest
children. The evidence was clear that [the oldest
daughter] had a difficult time adjusting to parent
time and it is clearly in her best interests for parent
time to include the twins.
The district court also stated that it was “unclear where [Husband]
developed the idea that ‘it was the intention of the court to grant
additional visitation’ relative to [the oldest daughter].”
¶24 The district court has the discretion to establish parent-time
in the best interests of the children. Childs v. Childs, 967 P.2d 942,
946 n.2 (Utah Ct. App. 1998). Husband presents no authority to
support his assertion that the district court abused its discretion in
ordering that he have equal parent-time with all of the parties’
children, despite the slight age difference between them. The
parties’ oldest daughter is less than a year older than the twins, and
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the district court expressly found that it was “clearly in her best
interests for parent time to include the twins.” Husband has not
persuaded us that the district court abused its broad discretion in
ordering the parties’ three young children to have parent-time with
Husband together, consistent with the statutory schedule
applicable to all of the children based on their ages.
¶25 Husband also suggests that Wife agreed that Husband
should have additional parent-time with the oldest daughter and
that the district court was obligated to respect the parties’ wishes.
However, there appears to have been no such agreement on this
issue. Wife opposed Husband’s objection to the court’s order,
stating that she “did not agree with [Husband] that visitation for
the oldest child would be in accordance with [Utah Code section]
30-3-35.”
IV. Child Support
¶26 Husband raises two challenges to the district court’s child
support award, both of which attack the district court’s
determination of his income. First, Husband argues that the district
court failed to make adequate factual findings to support its
inclusion of Husband’s overtime wages as part of Husband’s total
available income. Second, Husband argues that the district court
erred when it treated his $1,285 in gross monthly rental income as
available income without deducting his mortgage payments and
other necessary expenses.
¶27 On the overtime issue, Husband relies on the statutory
requirement that income in excess of one forty-hour per week job
may be considered for child support purposes “[i]f and only if
during the time prior to the original support order, the parent
normally and consistently worked more than 40 hours at the
parent’s job.” Utah Code Ann. § 78B-12-203(2) (LexisNexis 2012).
Husband argues that the district court made no findings that
Husband normally and consistently worked in excess of forty
hours per week. See Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169
P.3d 754 (discussing the need for adequate factual findings).
20120912-CA 10 2014 UT App 239Tobler v. Tobler
Inadequate findings by the district court will be deemed reversible
error “when the facts are not clear from the record.” Id.¶28 Here, however, it is clear from the record that Husband
regularly worked overtime hours. Wife testified at trial that
Husband normally worked overtime, and she submitted tax
returns and paystubs reflecting a three-year history of overtime.5
The district court based its determination of Husband’s wage
income on “the average [of Husband’s] last three years’ income
from the parties’ tax returns from 2009 and 2010, and his W-2 from
2011.” To the extent that those three years of income data reflected
Husband’s overtime, the average of the three years’ figures would
reflect the amount of overtime that Husband “normally and
consistently worked” over that time frame.6 See Utah Code Ann.
§ 78B-12-203(2). In light of this record, we see no reason to disturb
the district court’s inclusion of overtime in its determination of
Husband’s wage income.
¶29 On the rental income issue, Husband argues that the district
court erred when it treated the $1,285 per month he receives from
renting out a St. George residence as income, without deducting
the mortgage payments and other necessary business expenses
relating to the rental property. See id. § 78B-12-203(4)(a) (“Gross
income from self-employment or operation of a business shall be
calculated by subtracting necessary expenses required for
self-employment or business operation from gross receipts.”). The
5. Husband seemed to agree that he regularly received overtime
pay. At trial, Wife’s counsel asked Husband to confirm that he had
received overtime pay every year for the last five years. Husband
responded, “I work overtime when they ask me to and to help
others out, yes.”
6. There is no suggestion here that the three-year average of
Husband’s income was inflated by some one-time overtime event
that could not be considered normal and consistent. Certainly,
Husband has cited nothing in the record to support such a
conclusion.
20120912-CA 11 2014 UT App 239Tobler v. Tobler
monthly business expenses Husband identifies include a mortgage
payment of $615, property taxes of $108, and insurance premiums
of $45.
¶30 In overruling Husband’s objection on this issue, the district
court stated that it “clearly took into account [Husband’s] rental
income and the deductions therefrom when determining his income”
for child support purposes. (Emphasis added.) However, based on
our review of the district court’s memorandum decision, it is not
clear that Husband’s claimed business expenses were deducted
from the $1,285 in monthly rent. The memorandum decision stated
Husband’s monthly income to be $12,867, which represented the
three-year average of Husband’s monthly wage income “together
with the $1,285.00 he receives as rental income from the house in St.
George.” (Emphasis added.)
¶31 If the district court failed to deduct Husband’s legitimate
business expenses from his gross rental income, it would constitute
an abuse of the court’s discretion. We therefore remand this matter
to the district court for more explicit findings on what the court
deducted and, if necessary, a recalculation of Husband’s income
taking into account Husband’s reasonable business expenses
relating to the St. George property. The district court should then
recalculate child support and revisit any other issues affected by
the change in Husband’s available income.
V. Alimony
¶32 Husband challenges two aspects of the district court’s
alimony award. First, Husband argues that the district court erred
when it allowed Wife to include $200 in monthly savings as a
reasonable expense in calculating her need but disallowed
Husband’s $1,269 contribution from each paycheck into his 401(k)
account as a reasonable expense in calculating his ability to pay.
Second, Husband challenges the time period for which alimony
was awarded, arguing that Wife was able to support herself by the
time the decree was entered and that the district court’s failure to
allow him credit for his temporary alimony payments resulted in
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alimony being awarded for a period of time in excess of the length
of the marriage.
¶33 We see no abuse of discretion in the district court’s disparate
treatment of the parties’ claimed savings expenses. The district
court found that Wife’s savings expense was reasonable because
“the parties regularly saved during the marriage, and it is
reasonable for [Wife to] continue saving consistent with the parties’
married lifestyle.” See Bakanowski v. Bakanowski, 2003 UT App 357,
¶ 16, 80 P.3d 153 (“The critical question is whether funds for
post-divorce savings, investment, and retirement accounts are
necessary because contributing to such accounts was standard
practice during the marriage and helped to form the couple’s
marital standard of living.”).
¶34 The district court made no such finding regarding
Husband’s 401(k) contributions, ruling instead that those
contributions were not “a reasonable need, but rather a savings
withholding.” Husband does not challenge either the district
court’s express finding that the amount of his 401(k) contributions
was not reasonable or its implicit finding that those contributions
were not consistent with the parties’ marital practice.7 Nor does he
argue on appeal that he should have been allowed a savings
expense equal to Wife’s monthly savings or in some other amount
supported by the parties’ marital practice.
¶35 Rather, Husband argues that the district court’s failure to
allow his 401(k) contributions as a reasonable expense grants Wife
a double recovery because she was also awarded a one-half interest
7. Husband does assert, without any citation to the record, that
“[t]he evidence was uncontroverted that [Husband’s 401(k)
contributions] regularly occurred.” However, this assertion is not
synonymous with a claim that such contributions regularly
occurred over the course of the parties’ marriage. And again, Husband
has not cited any evidence in the record that would support a
finding that his 401(k) contributions comported with a pattern
established during the marriage.
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in the marital portion of the 401(k) account. Husband presents no
authority for this position, and we will not disturb the district
court’s ruling on this basis. Further, it would appear that any
“double recovery” would result from Husband’s voluntary
commingling of his post-separation income with a known marital
asset that would likely be valued as of the date of the decree. See
Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993) (“As a
general rule, the marital estate is valued at the time of the divorce
decree.”). For these reasons, we see no abuse of discretion in the
district court’s treatment of the parties’ post-separation savings.
¶36 We also see no abuse of discretion in the amount or duration
of the district court’s alimony award. In evaluating Husband’s
arguments to the contrary, it is helpful to understand how the
district court approached the parties’ alimony disputes. The parties
presented the district court with competing arguments about
Wife’s need for alimony and the length of time that alimony should
be awarded. Wife argued that she was unable to return to work
because she needed to care for the parties’ three young children.
Husband contended that Wife was capable of working and
supporting herself without alimony. The district court resolved this
dispute in Wife’s favor, ruling that “[t]he parties mutually decided
that [Wife] should give up working in order to care for the parties’
children full time” and that “[i]t is not reasonable in the context of
this case to require [Wife] to work while having the care of three
children all under 3 years of age, at least in the short term.”
Accordingly, the district court found Wife’s present ability to work
was limited and that she was unable to meet her own needs.
¶37 Wife also argued that alimony should be awarded for a
period of time greater than the length of the marriage because she
needed additional education. See Utah Code Ann. § 30-3-5(8)(j)
(LexisNexis 2013) (“Alimony may not be ordered for a duration
longer than the number of years that the marriage existed unless,
at any time prior to termination of alimony, the court finds
extenuating circumstances that justify the payment of alimony for
a longer period of time.”). Husband argued that Wife’s desire for
further education did not constitute an extenuating circumstance
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warranting alimony in excess of the duration of the marriage.
Husband also argued that the district court should count his
temporary alimony payments toward the statutory duration-of-
the-marriage time limit.
¶38 The district court rejected Wife’s request for an extended
alimony period, ruling that Wife had presented “no legal support
for the extension of alimony to allow for further education.” The
district court then ruled that it would “not extend alimony beyond
the length of the marriage, but will order alimony payments for
four years and eight months.” (Emphasis added.)
¶39 The district court’s language implicitly rejected Husband’s
argument that he should have received credit for his prior
temporary alimony payments, a reading that is confirmed by the
district court’s overruling of Husband’s subsequent objection on
this issue. Husband objected that the district court’s memorandum
decision “did not state specifically whether temporary spousal
support previously paid by [Husband] to [Wife] should be credited
against the four-year-eight-month period.” In rejecting Husband’s
objection, the district court stated that it had “ruled on that
argument, by stating the length of alimony as a time certain . . . ;
that ruling precludes temporary alimony already paid as credit
against the final alimony determination.”
¶40 Husband argues on appeal that Wife “was gainfully
employed before marriage and qualified to obtain appropriate
employment with having various degrees should she reenter the
workforce.” Husband then argues, without supporting authority,
that it was unreasonable for the district court to “assume [Wife]
would be unable to work for four years and eight months” due to
her custody of the parties’ three small children. We disagree. One
of the statutory factors that must be considered in determining an
alimony award is “whether the recipient spouse has custody of
minor children requiring support.” Utah Code Ann. § 30-3-
5(8)(a)(v). Prior cases have recognized that a recipient spouse’s
earning capacity may be affected by the custody of children. See
Fletcher v. Fletcher, 615 P.2d 1218, 1223 (Utah 1980) (affirming
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alimony award as “reasonable” where recipient spouse’s “income
was limited by part-time employment so she might give adequate
care and nurturing to the three younger children, ranging in age
from four to eight”); Rehn v. Rehn, 1999 UT App 41, ¶ 9, 974 P.2d
306 (“[I]t is sufficient to impute a lesser income to the recipient
spouse so that she might give adequate care and nurturing to the
parties’ minor children . . . .”). In light of this authority, we see no
abuse of discretion in the district court’s determination of Wife’s
earning capacity.
¶41 Husband also argues that the district court’s award of
alimony for four years and eight months, without giving him credit
for his temporary alimony payments, resulted in a total alimony
award period that exceeds the duration of the parties’ marriage.8
See generally Utah Code Ann. § 30-3-5(8)(j) (limiting the length of
alimony awards to the duration of the of the parties’ marriage).
Husband’s argument assumes that both temporary alimony and
permanent alimony count against Utah Code section 30-3-5(8)(j)’s
presumptive “duration of the marriage” time limit on alimony
awards. In essence, Husband argues that the statutory limit on the
duration of alimony awards begins running upon an award of
temporary alimony rather than upon an award of permanent
alimony.
¶42 Husband has not directed this court to any case that
interprets Utah Code section 30-3-5(8)(j) to include temporary
alimony within that statute’s definition of “alimony” for purposes
of the statute’s time limitation. See id. Nor has he made a supported
argument for his preferred interpretation of section 30-3-5(8)(j)
based on general principles of statutory interpretation. Finally,
Husband has failed to address the district court’s balancing of the
parties’ competing arguments about the proper duration of the
alimony award. These issues are critical to the success of his
argument, and by failing to address them, Husband has failed to
8. Neither party raises any argument that the district court
improperly considered four years and eight months to be the
duration of the marriage.
20120912-CA 16 2014 UT App 239Tobler v. Tobler
meet his burden of persuasion on appeal. See Salt Lake County v.
Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 37 n.5, 297
P.3d 38 (discussing an appellant’s “burden of persuasion on
appeal”); cf. Donnelly v. Donnelly, 2013 UT App 84, ¶ 46, 301 P.3d 6(“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 demonstrating an abuse of discretion.”). In
light of Husband’s failure to meet his burden of persuasion, we will
not disturb the district court’s alimony award based on his
argument that the district court ordered alimony “for a duration
longer than the number of years that the marriage existed.” See
Utah Code Ann. § 30-3-5(8)(j).
VI. Property Division
¶43 Husband argues that the district court erred in its division
of Husband’s 2011 bonus and his 401(k) retirement plan. As to
Husband’s 2011 bonus of roughly $18,000, Husband argues that the
district court erred in treating the bonus as marital property rather
than as Husband’s income and in dividing the bonus equally
between the parties without accounting for the related tax liability.
Husband also suggests that Wife’s portion of the bonus should
have been completely offset by a $10,000 check that Wife had
written to herself and $3,000 that Wife had obtained from an
unauthorized sale of stock. As to the 401(k) account, Husband
argues that the district court undervalued that account as of the
time of the marriage by approximately $2,000, thereby erroneously
increasing the amount that was divided between the parties as part
of the marital estate.
¶44 Husband presents no record citations for any of the
numerous factual assertions that he makes in support of these
arguments, and we will not search the record in an effort to locate
them. See Tanner v. Carter, 2001 UT 18, ¶ 19, 20 P.3d 332 (stating
that it is not an appellate court’s burden “to comb the record for
evidence” in support of an appellant’s arguments); Wohnoutka v.
Kelley, 2014 UT App 154, ¶ 6, 330 P.3d 762 (“An appellate court
should not be asked to scour the record to save an appeal by
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remedying the deficiencies of an appellant’s brief.”). Further, he
has not demonstrated error below with reasoned argument
supported by applicable legal authority. Under these
circumstances, Husband has not carried his burden of persuasion
on his property division issues. See State v. Nielsen, 2014 UT 10,
¶ 34, 326 P.3d 645 (discussing Utah’s briefing requirements as “an
outgrowth of a party’s burden of persuasion on appeal”); State v.
Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (“It falls squarely upon an
appellant to surmount the filing, briefing, and persuasion burdens
associated with an appeal.”).
VII. Attorney Fees
¶45 Wife asks this court to award her attorney fees and costs
incurred in responding to Husband’s appeal. Wife argues that an
award of attorney fees and double costs is warranted as a sanction
against Husband under rule 33(a) of the Utah Rules of Appellate
Procedure. In the alternative, she asks us to order Husband to pay
her attorney fees and costs pursuant to Utah Code section 30-3-3(1).
¶46 Rule 33(a) of the Utah Rules of Appellate Procedure allows
this court to impose sanctions, which may include attorney fees
and double costs, against a party whose appeal is “either frivolous
or for delay.” Utah R. App. P. 33(a). Wife argues that Husband’s
appeal is “frivolous in its entirety,” citing his failure to marshal the
evidence and to provide record citations to the evidence allegedly
supporting his positions. Wife also asserts that Husband has made
erroneous statements of law with no supporting authority and has
ignored established law when it was contrary to his position.9
¶47 The imposition of rule 33 sanctions “is a serious matter and
only to be used in egregious cases, lest the threat of such sanctions
9. Wife does not provide any specific examples of these alleged
shortcomings and refers us generally to the discussion in the
analysis section of her brief. However, we will not dissect Wife’s
analysis in search of clues as to which of Husband’s arguments she
deems sanctionable.
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should chill litigants’ rights to appeal lower court decisions.” Redd
v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. Although the bulk of
Husband’s arguments on appeal have been unsuccessful, we
cannot say that his appeal, taken as a whole, presents the egregious
case that warrants rule 33 sanctions. We decline to award attorney
fees to Wife as a rule 33 sanction under the circumstances of this
case.
¶48 Wife requests in the alternative that we order Husband to
pay her appellate attorney fees and costs under Utah Code section
30-3-3, which provides for attorney fee awards in divorce actions.
See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (allowing awards
of fees and costs against a party to a divorce proceeding “to enable
the other party to prosecute or defend the action”). Ordinarily, we
award appellate attorney fees and costs when a party was awarded
fees and costs below and then prevails on appeal. Bell v. Bell, 810
P.2d 489, 494 (Utah Ct. App. 1991). In this case, however, the
district court expressly ordered both parties to bear their own
attorney fees and costs. Thus, the general rule that a party who is
awarded fees below is entitled to an award of appellate fees after
a successful appeal does not apply here. See Cantrell v. Cantrell,
2013 UT App 296, ¶ 22 n.6, 323 P.3d 586 (“An award of fees on
appeal requires both a fee award below and success in the appellate
court.” (citation and internal quotation marks omitted)).
¶49 Notwithstanding the district court’s refusal to award her
attorney fees below, Wife argues that this court has the discretion
to award her appellate attorney fees pursuant to Utah Code section
30-3-3. In support of her request, Wife cites—but does not
analyze—Maughan v. Maughan, 770 P.2d 156 (Utah Ct. App. 1989).
See id. at 162–63 (stating that section 30-3-3’s grant of authority
“includes attorney fees incurred on appeal”). In Maughan, this court
awarded appellate attorney fees pursuant to Utah Code section 30-
3-3, but, in that case, the trial court had awarded attorney fees
below. See id. at 159. Even assuming that Utah Code section 30-3-3
provides an exception to the general rule that a party must be
awarded fees below to receive fees on appeal, Wife has not
20120912-CA 19 2014 UT App 239Tobler v. Tobler
persuaded us that an award of appellate fees is merited in this case.
We therefore deny Wife’s request for appellate attorney fees.
CONCLUSION
¶50 We affirm the district court’s denial of Husband’s motion to
bifurcate, as well as the court’s temporary orders. However, we
cannot determine whether the district court deducted Husband’s
reasonable business expenses from his rental income in calculating
Husband’s total income for child support purposes. We therefore
remand for further proceedings to determine Husband’s net rental
income and, if necessary, to adjust the child support award and
other related calculations. In all other respects, we affirm the
district court’s decree of divorce, findings of fact, and conclusions
of law.
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