Bjarnson v. Bjarnson , 2020 UT App 141 ( 2020 )

2020 UT App 141THE UTAH COURT OF APPEALS
HUGH LYNN BJARNSON,
Appellant,
v.
JENNIFER LOU BJARNSON,
Appellee.
Opinion
No. 20190734-CA
Filed October 16, 2020
Fourth District Court, Provo Department
The Honorable Derek P. Pullan
No. 164400963
Aaron R. Harris, Attorney for Appellant
Rosemond G. Blakelock and Megan P. Blakelock,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN
concurred.
ORME, Judge:
¶1 Hugh Lynn Bjarnson and Jennifer Lou Bjarnson were
married in 2008. In 2016, Hugh 1 filed for divorce, and the parties
separated three months later. Following a bench trial, the district
court entered a decree of divorce in 2019. The court’s alimony
determination is the sole point of contention on appeal.
1. Because the parties share the same surname, we refer to them
by their first names, with no disrespect intended by the apparent
informality.
Bjarnson v. Bjarnson
¶2 Following the couple’s separation, Jennifer moved in with
her ailing mother, with whom she had also lived between the
time she separated from a former husband and when she moved
in with Hugh. She could not recall how long she had lived with
her mother the first time but said that she had done so “briefly.”
Her mother’s residence is a fully furnished three-level home, on
five acres, in which Jennifer had her own bedroom. When she
moved in following her separation from Hugh, she did not pay
rent, although she provided care to her mother and testified that
she paid her mother’s water assessment. Jennifer asserted at trial
that she could not afford to rent an apartment at that time and
was “living there because [she had] nowhere else to live.” It was
entirely unclear how long she would remain there. 2
¶3 The court determined that Jennifer was entitled to a
monthly alimony award of $1,830, $1,000 of which accounted for
her anticipated monthly housing expense, as reflected in her
financial declaration. But because she was not obligated to pay
rent while living with her mother, the court ordered Hugh to
make alimony payments “for the length of the marriage in the
amount of $830 per month until . . . Jennifer secures her own
housing,” at which time the “alimony will increase to $1,830 per
month.” Hugh appeals.
¶4 Hugh’s argument is limited to the prospective aspect of
the district court’s alimony award. He does not challenge the
$830 monthly obligation currently payable. Instead, he contends
that the court exceeded its discretion by ordering a prospective
increase in his alimony obligation based upon an uncertain
future event. We agree.
2. Nothing in the record or briefing suggests that Jennifer’s living
situation has changed subsequent to entry of the divorce decree.
20190734-CA 2 2020 UT App 141Bjarnson v. Bjarnson
¶5 Although “trial courts have broad latitude in determining
whether to award alimony and in setting the amount, and we
will not lightly disturb a trial court’s alimony ruling, . . . we will
reverse if the court has not exercised its discretion within the
bounds and under the standards we have set.” Rule v. Rule, 2017
UT App 137, ¶ 11, 402 P.3d 153 (quotation simplified). See also
State v. De La Rosa, 2019 UT App 110, ¶ 4, 445 P.3d 955 (“Trial
courts do not have discretion to misapply the law.”) (quotation
simplified). We conclude that it was legal error for the district
court to order a prospective increase in alimony based on a
possible future event without first finding when—or even
whether—such an event will occur. Instead, the court should
have reserved the question of a possible change in alimony for a
later petition to modify the alimony award should Jennifer’s
housing situation change.
¶6 “A prospective change in alimony alters the award to
which the recipient spouse would otherwise be entitled based on
the trial court’s anticipation of a future event that will materially
change the parties’ circumstances.” Boyer v. Boyer, 2011 UT App
141, ¶ 15, 259 P.3d 1063. But because “the trial court will be
better able to make an educated adjustment when and if [a
possible future] event actually occurs,” id., “prospective changes
to alimony are disfavored,” Richardson v. Richardson, 2008 UT 57,
¶ 10, 201 P.3d 942. Indeed, they are appropriate “only as to
future events that are ‘certain to occur within a known time
frame.’” MacDonald v. MacDonald, 2018 UT 48, ¶ 40, 430 P.3d 612(quoting Richardson, 2008 UT 57, ¶ 10). Thus, in Richardson, a
prospective change in alimony was appropriate where it was
based on events that were certain to occur on specified dates. See
2008 UT 57, ¶¶ 10–11. In contrast, “a plan to retire, without
actually retiring, would be insufficient to justify a prospective
alimony reduction.” Id. ¶ 10.
¶7 Here, the district court ordered Hugh to pay a prospective
alimony increase of $1,000 per month when “Jennifer secures her
20190734-CA 3 2020 UT App 141Bjarnson v. Bjarnson
own housing.” Other than noting that Jennifer was “residing
with her mother rent free right now,” the court made no factual
findings regarding her future housing. It did not find that it was
“certain” that Jennifer would secure her own independent
housing, much less that it would occur “within a known time
frame.” See id. Indeed, it could not have so found absent any
indication that Jennifer was actively searching for independent
housing, that she intended to move out of her mother’s home
within a certain timeframe, or that her current living
arrangements would be short-lived. The amount of the
appropriate increase was also necessarily speculative. The $1,000
may have been a solid estimate based on current conditions, but
either high or low depending on when and whither she
relocates—if she does. The prospective modification to the
alimony award was thus improper under Richardson and its
progeny, even though the court’s desire for efficiency is
understandable.
¶8 Jennifer argues that “[h]ousing was not considered by the
court to be some ‘future’ event.” Rather, she contends the court
ordered the alimony increase with the goal of “restor[ing] the
parties to the same standard of living that existed during the
marriage,” and because an independent living situation had
been Jennifer’s standard of living during her marriage, the court
properly determined that she was entitled to monthly alimony
payments in the amount of $1,830. In support of this argument,
she relies on Sauer v. Sauer, 2017 UT App 114, 400 P.3d 1204, in
which we affirmed the trial court’s decision to base part of its
alimony award on the payee’s future expected housing
expenses. See id. ¶ 10. In Sauer, the trial court based its decision
on the facts that the payee “live[d] in a trailer on a friend’s
property” and that “it [was] unknown how long a person can
survive on the good nature of a friend.” Id. (quotation
simplified). We noted that the court’s “determination ma[de]
conceptual sense” because “[i]n the aftermath of a separation, a
party may temporarily return to his or her parents’ home, shelter
20190734-CA 4 2020 UT App 141Bjarnson v. Bjarnson
with friends, or become homeless and thus incur no actual
housing expenses.” Id. ¶ 10 n.3. In such situations, “the court
may consider what constitutes a reasonable rental or mortgage
payment in the relevant area for housing similar to the housing
previously shared by the parties.” Id.¶9 Although the district court in this case would have been
entitled to make such a determination if it had found that
Jennifer’s living situation with her mother was a temporary
byproduct of the divorce, as with the examples mentioned in
Sauer, the court took a different course. Instead of ordering Hugh
to immediately begin making monthly payments of $1,830—as
would have been consistent with the approach taken in Sauer—
the court determined that a monthly alimony award of $830 was
sufficient to maintain Jennifer’s standard of living while she
lived with her mother. The court then made the $1,000 increase
in alimony conditional on Jennifer securing her own housing at
some later date. The increase was unquestionably a prospective
change to its alimony award because it was based “on the trial
court’s anticipation of a future event that will materially change
the parties’ circumstances,” i.e., a change in Jennifer’s living
situation. See Boyer, 2011 UT App 141, ¶ 15. Thus, the court erred
in ordering the prospective increase without first concluding
that the material change was “certain to occur within a known
time frame.” See Richardson, 2008 UT 57, ¶ 10.
¶10 To be sure, the uncertainty of whether or when Jennifer
would secure her own independent living arrangement does not
undercut her ability to do exactly that at some future date and to
seek a corresponding increase in the amount of her alimony. The
district court already determined that she would be entitled to
an increase in that event. But the proper procedure for seeking
an increase in alimony, should she eventually secure other
housing, would be for her to file a petition to modify the
alimony award. See Utah Code Ann. § 30-3-5(10)(a) (LexisNexis
Supp. 2020). Where an anticipated event is too speculative for
20190734-CA 5 2020 UT App 141Bjarnson v. Bjarnson
the court to consider in its alimony determination at the time of
divorce, as is the case here, “the court may . . . delay the
determination” by entering “findings indicating that the future
[event] has not been considered in making the present award”
because material information regarding the future event was
unavailable to the court at the time of the divorce decree, thereby
avoiding future dismissal of the petition to modify on
foreseeability grounds. MacDonald, 2018 UT 48, ¶ 35 (quotation
simplified). See id. ¶¶ 34–36, 40–41.
¶11 We therefore vacate the portion of the court’s decree
prospectively increasing the alimony award and remand for the
court to enter the necessary findings so that the issue is
preserved for future resolution and the determination can be
made later upon a petition to modify, with any “foreseeability”
argument Hugh might otherwise be inclined to make being
effectively foreclosed. 3
3. Because Hugh prevails on appeal, we deny Jennifer’s request
for attorney fees, premised on rule 33 of the Utah Rules of
Appellate Procedure.
20190734-CA 6 2020 UT App 141