Vanderzon v. Vanderzon , 402 P.3d 219 ( 2017 )

2017 UT App 150THE UTAH COURT OF APPEALS
HEIDI KIRSTEN VANDERZON,
Appellant,
v.
JOHN MATTHIAS VANDERZON,
Appellee.
Opinion
No. 20140946-CA
Filed August 17, 2017
Third District Court, Silver Summit Department
The Honorable Todd M. Shaughnessy
No. 114500013
Diana J. Huntsman, Sherri L. Walton, Jason T.
Schow, Michael D. Zimmerman, Julie J. Nelson, and
Clemens A. Landau, Attorneys for Appellant
David S. Dolowitz, James M. Hunnicutt, and Shane
A. Marx, Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JILL M. POHLMAN concurred. 1 JUDGE GREGORY K. ORME concurred
in the result.
ROTH, Judge:
¶1 Heidi Kirsten Vanderzon and John Matthias Vanderzon 2
divorced by bifurcated decree in March 2013. Several issues were
1. Judge Stephen L. Roth participated in this case as a member of
the Utah Court of Appeals. He retired from the court before this
decision issued.
2. Because they share a last name, we refer to the parties
individually by their first names for convenience.
Vanderzon v. Vanderzon
reserved for trial following entry of the decree, including child
custody, alimony, and attorney fees. In September 2014, the trial
court issued its final decree of divorce, which addressed all of
the remaining issues. Heidi appeals from that decree,
challenging the court’s orders regarding custody, alimony, and
attorney fees. We affirm in part and vacate in part and remand.
BACKGROUND
¶2 Heidi and John married in Virginia in 1997, where they
continued to live for many years. In 2008, Heidi moved with
their three children to Park City, Utah, while John remained in
Virginia. The couple formally separated two years later, and
Heidi filed for divorce in Utah in January 2011.
¶3 Following the entry of the bifurcated decree of divorce, a
bench trial was held during which the court heard evidence
related to the issues remaining between the parties, including
child custody, alimony, and attorney fees. On September 5, 2014,
the court issued its findings of fact and conclusions of law as
well as its final decree of divorce, which resolved all remaining
issues.
Custody
¶4 The court awarded the parties joint legal custody of the
children and established a joint physical custody arrangement
under which John would have substantial parent time but Heidi
would remain the children’s primary caregiver. At the time of
the trial in 2014, the parties had been living separately for over
five years. Heidi rented a home in Park City, Utah, where she
cared for all three of the parties’ minor children, who attended
school nearby. John continued to live in Virginia, working as he
had for many years in the Washington, D.C. area. After Heidi
moved to Park City, John traveled to Utah on weekends to see
his family. However, once the divorce proceedings began, John’s
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access to his children and the parties’ long-distance co-parenting
efforts became a significant source of conflict.
¶5 A custody evaluator, Dr. Valerie Hale, was appointed to
address the custody issues in the case. Her evaluation included
“numerous interviews with Heidi and John” and their children,
as well as on-site home visits in both Utah and Virginia. She
prepared a “detailed and exhaustive report” and testified at trial.
Dr. Hale recommended “that the children go back to Virginia.”
She stated that the “distance between the parents hasn’t been
working for a variety of reasons on a variety of levels” and noted
that the children “didn’t express an intense attachment . . . to
Park City,” but had instead communicated “a temporary
feeling.” She emphasized the importance of providing the
children with as stable and complete a relationship as possible
with each of their parents, which would include ready access to
both John and Heidi, along with proximity to relatives, most of
whom lived in the eastern United States. She stated that it was
particularly important that the children “get to have access to
Dad and Mom . . . in a spontaneous way, . . . not according to a
strict schedule but in a way that lets them approximate as
naturally as they can the need to exploit each parent.”
¶6 When asked how far divorced parents could live from
each other and still manage the kind of parental interaction she
recommended, Dr. Hale cited research that indicated that “if
parents live more than 75 miles apart, . . . the non-residential
parent participation . . . drops off precipitously,” and that
“parents being within 45 minutes’ drive” is ideal, because it
allows for “natural flexibility” in parenting. Noting that Virginia
is “traffic-y,” Dr. Hale ultimately recommended that Heidi
should live within forty-five minutes of John if she relocated to
northern Virginia.
¶7 In reaching its custody determination, the court “relie[d]
heavily” on Dr. Hale and found “her written report and
[testimony] at trial to be thoughtful, thorough, and sound.” The
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court decided that a joint physical custody arrangement was in
the best interests of the children, with Heidi as the primary
caregiver. The court also determined that it was in the children’s
best interests to relocate with Heidi to Virginia where John
resided. For most of the divorce proceeding, Heidi had indicated
that she was not willing to move back to Virginia, but on the
second day of trial she told the judge that if he ultimately
ordered the children to be relocated to Virginia, she would
“follow the children and be with the children.” In its final
decree, the court noted that Heidi had “voluntarily agreed to
relocate to Virginia so that she can continue to act as the primary
caregiver for the children.”
¶8 The court included in its findings and its final decree
certain provisions designed to facilitate the children’s transition
from Utah to Virginia. The court emphasized that the transition
“must be handled carefully and responsibly and with as little
disruption to the children as is possible,” and to that end the
decree ordered the parties to “develop a transition plan” with
the assistance of a transition specialist. The decree required the
parties to complete the children’s move to Virginia “no later than
January 1, 2015,” but, anticipating that Heidi might not be ready
to move immediately from Park City, the court made provisions
for their temporary custody with John during the period
between the children’s relocation and Heidi’s own move to
Virginia. In connection with these transitional arrangements, the
court made an effort to ensure that Heidi would move close
enough to John to implement the custody evaluator’s
recommendation that the location of the children’s residence
facilitate spontaneous interactions with both parents: “If Heidi is
not residing in Virginia and within 25 miles of John’s residence
at the time the children move, then the children will live with
John and he will act as the primary caregiver . . . until Heidi
relocates.” Then, “[u]pon Heidi’s relocation to Virginia within 25
miles of John’s residence, the children will live with her, [and]
she will resume her role as primary caregiver.”
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Alimony
¶9 The trial court ordered John to pay Heidi $6,400 per
month in alimony. The court noted that it was required to
consider several factors in making its alimony award, including
Heidi’s “financial condition and needs,” Heidi’s “earning
capacity or ability to produce income,” and John’s “ability . . . to
provide support.” See Utah Code Ann. § 30-3-5(8)(a)(i)-(iii)
(LexisNexis 2013). The court found that Heidi had monthly
expenses of $14,758, which included $4,000 of child-related
expenses that it noted were “essentially offset” by the child
support award of $3,613. In deciding the appropriate amount of
income to impute to Heidi, the court relied on the opinions of a
vocational expert. Heidi had not worked outside the home
during the marriage, but before marrying, she had obtained
bachelor’s degrees in History and Russian, with a minor in
Soviet Studies, and she had worked as a Russian translator at a
law firm from 1990 to 1997. The expert opined that, based on
Heidi’s college degrees and the results of vocational testing, “the
best option[] for [Heidi] would be public relations specialist,”
which had an entry-level salary of about $34,150 yearly, or
$2,846 per month before taxes and other deductions. The court
ultimately imputed income in that amount to Heidi. After
subtracting Heidi’s gross imputed income and the monthly child
support payments from her expenses, the court concluded that
Heidi had $8,300 of unmet need.
¶10 The court then determined that John’s monthly gross
income was $26,667 per month, yielding a net income (i.e., after
taxes and other deductions) of $19,733 per month. The court then
deducted the $3,613 child support payment, which left John with
$16,120 to pay his own expenses and support Heidi. The court
then subtracted John’s monthly expenses of $10,000, leaving
surplus in the amount of $6,120, which it noted “is close but
ultimately insufficient to satisfy . . . Heidi’s unmet need” of
$8,300. In arriving at its ultimate alimony determination,
however, the court turned to a report and separate calculations
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prepared by John’s alimony expert. The report assumed that the
parties would enjoy equal custody of the children. As a result, its
stated goal was to equalize the parties’ standards of living
essentially by equalizing the parties’ budgets, reasoning that
both parties would need an equal monthly cash flow to provide
an equal standard of living for themselves and their children.
Based on a number of calculations not easily reconciled with the
trial court’s own findings, the report indicated, as the court
noted, that “a total monthly support obligation (alimony plus
child support) of $10,000 would . . . result in a net, after tax
income to [Heidi] of $10,240” and to John “of $10,239.” The court
concluded that by using the report’s total support calculation,
“both parties’ after tax cash flow would essentially be identical”
and “would leave both parties with an essentially identical
shortfall in the amounts needed to meet their monthly needs.”
As a result, the court adopted the report’s $10,000 “monthly
support obligation” figure, and, after deducting John’s child
support payment, ordered John to pay the rounded-up balance
of $6,400 as alimony to Heidi for a period equal to the length of
the marriage.
Attorney Fees
¶11 After the trial concluded, the court issued a May 28, 2014
minute entry (the Minute Entry), as well as its preliminary
findings of fact and partial decree, which required the parties to
submit proposed findings of fact and conclusions of law by July
9, 2014. The Minute Entry also set out the procedure for each
party to request attorney fees:
To the extent either party is requesting that the
court allocate some but not all of their attorneys’
fees or costs to the other side, or that the court
require the other side to bear the fees and costs
incurred in connection with particular tasks or
phases of the case, they must provide a calculation
of the fees and costs incurred for the particular task
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or phase at issue. If a party fails to provide a
separate calculation of the fees and costs incurred
for particular tasks or aspects of the case, the court
will not grant those fees and costs. This is because,
given the time this case has been pending and the
amount of fees incurred, it would be impossible for
the court to try and determine from billing records
alone how to allocate fees and costs to particular
issues in the case. If a party is requesting that the
court allocate all of their fees and costs to the other
side, they may simply submit a consolidated
affidavit of fees and costs. If all the court receives is
a consolidated affidavit of fees and costs, it will
treat this as a request to allocate all of their fees and
costs to the other side.
¶12 Subsequently, Heidi requested in her proposed findings
of fact that she be awarded all of her attorney fees or, in the
alternative, only those fees associated with pursuing discovery
related to John’s employment with and sale of his interest in Sun
Management, a company that John owned for a time with his
brother. In her request for fees, Heidi did not provide either “a
consolidated affidavit of fees and costs” to support her full fee
request or “a separate calculation of the fees and costs incurred
for” the Sun Management discovery. Instead, she requested that
the court give her fourteen days to provide “an updated and
complete affidavit of Attorney’s Fees” for either her full fees or
the fees related only to the Sun Management discovery. John did
not request an award of his own attorney fees; rather, in his
proposed findings, he stated that no fees and costs should be
awarded to either party.
¶13 The court ordered that each party bear his or her own
costs and attorney fees. As pertinent to this appeal, the court
concluded that awarding Heidi all her fees would be “patently
unreasonable” and “manifestly unjust” because Heidi bore
“responsibility for at least half—if not more—of the excessive
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fees and costs that have been incurred.” The court denied
Heidi’s alternative request for fees associated with the Sun
Management discovery for three primary reasons. First, the
court found that the expenses Heidi incurred were “offset by
fees and costs she forced John to incur as a result of her own
litigation tactics.” Second, the court noted that “technically
John’s brother, not John, [was] responsible for unnecessarily
driving up the cost of the Sun Management discovery.” And
finally, “Heidi, like John, failed to comply with the court’s May
28, 2014, Minute Entry and has thereby waived any right to
recover this portion of her fees.”
Heidi’s Post-Judgment Motion
¶14 Following entry of the final decree of divorce, Heidi filed
a motion to amend the judgment under rules 52 and 59 of the
Utah Rules of Civil Procedure. Heidi requested two
modifications to the court’s decision relevant to this appeal.
First, she asked the court to “adjust the order to allow the
children to complete the current school year in Park City” rather
than relocating to Virginia by January 1, 2015. Second, she asked
the court “to clarify” the twenty-five-mile proximity requirement
by “[i]ncreasing the radius [of the proximity requirement] to 45
miles, and/or tethering [her] location to a school within a
reputable district,” which she asserted “would serve the
children’s best interest” and would help to avoid “further court
involvement.” Heidi also requested that the court “clarify that
[she] is not required to relocate with the children if John’s
decision to change his residence causes her to be outside of the
radius.”
¶15 The court denied Heidi’s motion. First, it determined that
the motion to amend was untimely. Second, the court
determined that none of issues she raised “are properly the
subject of a motion to amend the judgment.” In particular, the
court noted that the decree did not “prohibit either party from
seeking relief from the court” about the transition deadline or
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the “proximity of [Heidi’s] residence to [John’s] residence” if the
“transition specialist concludes that complying with the court’s
orders . . . would not be in the children’s best interest.” As a
result, the court concluded that Heidi’s requests were “purely
speculative.”
ISSUES
¶16 First, Heidi argues that the trial court’s twenty-five-mile
proximity requirement impermissibly infringes on her
constitutional rights to travel and to parent because the
requirement is not justified by a compelling interest or narrowly
tailored to meet that interest. In particular, she claims that the
court erred when it tied her award of primary physical custody
to her compliance with the proximity requirement and then
refused to relent by not allowing her to choose a location in
Virginia “more convenient and affordable for her.”
¶17 Second, Heidi argues that the trial court erred in its
alimony calculations and determinations.
¶18 Third, Heidi argues that the trial court erred by denying
her request for attorney fees incurred while pursuing discovery
related to John’s association with Sun Management.
ANALYSIS
I. The Twenty-Five-Mile Proximity Requirement
¶19 Heidi argues that the trial court erred when it
“conditioned the grant of primary custody to her” on living
within twenty-five miles of John’s residence. In particular, she
argues that the court’s proximity requirement is unconstitutional
because it infringes on her fundamental rights to travel and to
parent and because the twenty-five-mile requirement “is not
narrowly tailored to achieve a compelling state interest.”
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¶20 “We review custody determinations under an abuse of
discretion standard, giving the trial court broad discretion to
make an initial custody award.” Grindstaff v. Grindstaff, 2010 UT
App 261, ¶ 3, 241 P.3d 365 (citations and internal quotation
marks omitted). We “will affirm the trial court’s custody award
so long as the trial court’s discretion is exercised within the
confines of the legal standards we have set, and the facts and
reasons for the decision are set forth fully in appropriate
findings and conclusions.” Id. (citation and internal quotation
marks omitted). As we discuss below, Heidi has not preserved
her constitutional arguments or persuaded us that the court
plainly erred in setting the proximity requirement or refusing to
alter it as she requested in her post-judgment motion.
A. Interpretation of the Decree’s Proximity Requirement
¶21 As an initial matter, Heidi characterizes the court’s
proximity requirement as engrafting a continuing condition on
her award of primary physical custody, requiring her to forfeit
custody if she chooses to live outside of the twenty-five-mile
radius set by the court (or if John moves to a new residence
outside of the twenty-five miles and she declines to relocate in
response). As she explains it, “[t]he court overreached Heidi’s
agreement to live in Virginia when it conditioned the grant of
primary custody to her on her living within ‘25 miles of John’s
residence,’” and she requests that we vacate the court’s
proximity requirement and instead instruct the court to amend
its decree so that Heidi “may continue to have primary custody
so long as she lives within the 45 mile radius she agreed to in her
post-trial motions.” 3 But we do not interpret the trial court’s
3. Heidi has not challenged the proximity requirement on any
legal basis other than its constitutionality. As a consequence, we
presume that the court’s overall best interests findings—
including the proximity requirement—are otherwise supported
(continued…)
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order as broadly as Heidi does. Rather, the court’s proximity
requirement is more properly seen as an initial determination of
the children’s best interests in the context of the imminent
relocation to Virginia, subject to modification in light of
changing circumstances and aimed at ensuring that the
children’s transition to Virginia would be “as smooth as
possible.” And we believe that the trial court did not exceed its
discretion in making this determination.
¶22 The court determined that the children should relocate to
Virginia to be closer to John and to extended family in the area, a
decision Heidi does not challenge and with which she agreed
during trial. The court ordered that Heidi must live within
twenty-five miles of John upon relocation to Virginia only after a
careful analysis of the custody factors and the children’s best
interests. The court determined that “the most critical issue”
related to custody was that both parties live “in close proximity
to one another so that each parent [could] be meaningfully
involved in the children’s lives.” For several years before the
trial, the parties had lived across the country from each other,
with the children separated geographically from John. The trial
court found that, during this time, both parties had
“demonstrated a very poor capacity . . . to foster a positive
relationship between the children and the other parent” and that
Heidi in particular had “taken unreasonable positions and ha[d]
minimized the importance of John having regular, uninterrupted
contact with the children.” As a result, the long-distance
arrangement had been “extraordinarily difficult and damaging
to the children,” leading the court to conclude that the proximity
issue—and ensuring the opportunity for ongoing, meaningful
interaction with each parent—was “[m]ore important than who
(…continued)
by the evidence and in accord with applicable law. See Elmer v.
Elmer, 776 P.2d 599, 602 (Utah 1989).
20140946-CA 11 2017 UT App 150Vanderzon v. Vanderzon
was the primary caregiver.” In fashioning the proximity
requirement, the court relied upon the custody evaluator’s
recommendations. The evaluator had recommended that both
parents and the children live in Virginia and that the parents
reside no more than a forty-five-minute drive from each other,
which she stated would be less than forty-five miles due to
traffic congestion in northern Virginia near the Washington, D.C.
area.
¶23 Further, the court concluded that both Heidi and John
were “fit and proper parents,” but it ultimately resolved their
“competing claims” in Heidi’s favor because she had been the
children’s primary caregiver. See Thomas v. Thomas, 1999 UT App
239 ¶ 7, 987 P.2d 603 (explaining that if there are “competing
claims to custody between fit parents under the ‘best interests of
the child’ standard, considerable weight should be given to
which parent has been the child’s primary caregiver” (citation
and internal quotation marks omitted)). As a result, although
Heidi was granted primary physical custody, she was
nonetheless the relocating party, along with the children. The
court accordingly determined that it would be in the best
interests of the children for Heidi, upon relocating from Park
City, to establish her new residence within twenty-five miles of
the place where John was already residing in the Washington,
D.C. area. Seen in this light, the court’s decision to describe the
twenty-five-mile requirement as specifically applicable to Heidi
recognized the practicalities inherent in the circumstances, with
the focus on establishing and maintaining the children’s ready
access to both parents.
¶24 The court also saw the children’s transition to permanent
residence in Virginia as posing particular challenges for their
well-being and specifically addressed the transition process in
the decree. The court ordered the children to be relocated to
Virginia by January 1, 2015, and emphasized that,
notwithstanding the mid-school-year transition, their move
“must be handled carefully . . . with as little disruption as is
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possible.” The court ordered the parties to work out a transition
plan with a transition specialist to ensure that the move “will be
as smooth as possible.” And focusing on a potential
complication in the timing of Heidi’s move, the court gave
instructions for how the parties were to handle the transition if,
“at the time the children move,” “Heidi is not residing in
Virginia and within 25 miles of John’s residence.” In that event,
the court ordered, physical custody would transfer temporarily
to John—“the children will live with John and he will act as the
primary caregiver for the children until Heidi relocates,”
whereupon Heidi “will resume her role as primary caregiver.”
¶25 And, significantly, following the entry of the final decree,
the court indicated that the proximity requirement was based on
what it determined to be the best interests of the children at the
time of trial but that it was not intended to rigidly apply if the
circumstances on which it was based proved materially different
than anticipated, even if brought to light during the transition
period. In particular, the court stated that the twenty-five-mile
requirement “does not prohibit either party from seeking relief
from the court in the event the transition specialist concludes
that complying with the court’s orders concerning the deadline
for the transition or the proximity of [Heidi’s] residence to
[John’s] residence would not be in the children’s best interest.”
The court noted that, as a consequence, Heidi’s arguments about
potential issues with the twenty-five-mile requirement—issues
she reasserts on appeal—were “purely speculative” at the time
of her motion because neither Heidi nor the children had moved
to Virginia at that point and no transition plan had yet been
worked out.
¶26 Viewed in this light, the court’s proximity requirement
cannot reasonably be interpreted as subjecting Heidi’s award of
primary custody to a continuing risk of forfeiture. Rather, it was
aimed at ensuring that, as an initial matter, the parties reside
close enough to each other to meet the custody evaluator’s
recommendation for optimum parental involvement. And
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because John was already settled and living in Virginia, the
proximity obligation was reasonably addressed to Heidi, who
would be choosing a new residence upon moving back to
Virginia. The court’s order was also entered before either the
children or Heidi had relocated and therefore before the parties
had any practical experience with the proximity requirement.
Indeed, the court itself seemed to suggest that the proximity
requirement was an initial determination that was flexible and
could be re-evaluated in the event that the transition specialist
determined it was not in the children’s best interests. And the
decree’s provision for a change of custody to John if “Heidi is
not residing in Virginia and within 25 miles of John’s residence”
must be interpreted in this context. It is not a continuing threat
of automatic transfer of custody from Heidi to John at any time
she is residing more than twenty-five miles from him. Rather,
the court’s order regarding temporary transfer of custody was
fashioned to address potential issues surrounding the relocation
of the children to Virginia and the possibility that Heidi’s
transition would take additional time.
¶27 Thus, in the context of the parties’ circumstances, the
court’s best interests findings, and its transition concerns, we do
not think that the decree can be reasonably interpreted to tether
Heidi’s residence in Virginia to a twenty-five-mile radius of
wherever John might choose to live, on pain of automatically
losing primary physical custody of the children to him. To be
sure, Heidi is not free under the decree to simply move outside
the twenty-five-mile radius without first persuading the court
that it will not be detrimental to the children’s interests, but
neither can John force her to relocate or lose custody simply by
moving further away. Cf. Larson v. Larson, 888 P.2d 719, 723
(Utah Ct. App. 1994) (explaining that requiring forfeiture of
primary physical custody if the custodial parent chooses to move
is not appropriate unless “there [is] compelling evidence” to
justify a determination that removing children from their
lifelong primary caregiver is in the children’s best interests).
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B. Heidi’s Constitutional Arguments
¶28 Heidi claims that, even though she agreed to relocate to
Virginia, the court was not justified in narrowing her choice of
where to live to within a twenty-five-mile radius of John’s
residence. In particular, she challenges the court’s rejection of
her proposal that the proximity requirement be expanded to
forty-five miles or be defined by the bounds of a suitable school
district rather than John’s residence. Heidi bases her challenge to
the proximity requirement on constitutional grounds, arguing
that it impermissibly infringes on her constitutional rights to
travel and to parent her children. John argues that Heidi has not
preserved her constitutional arguments, and we agree.
¶29 “As a general rule, claims not raised before the trial court
may not be raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 11,
10 P.3d 346. 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,” Brookside Mobile Home Park,
Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968, and “the fact that a
party is asserting constitutional claims does not excuse him from
complying with the preservation rule,” Donjuan v. McDermott,
2011 UT 72, ¶ 21, 266 P.3d 839; see also Holgate, 2000 UT 74, ¶ 11
(explaining that the preservation requirement applies to
“constitutional questions”). We will therefore not address
unpreserved constitutional claims unless the appellant “can
demonstrate that exceptional circumstances exist or plain error
occurred.” Holgate, 2000 UT 74, ¶ 11 (citation and internal
quotation marks omitted).
¶30 Heidi contends that her constitutional challenges were
preserved because the trial court itself twice acknowledged that
it did not have authority to order her to relocate from Utah to
Virginia. But the trial court’s statements did not mention any
constitutional limitations on its authority. The court’s first
reference to its authority to order a parent to move was when it
responded to the custody evaluator’s recommendation that it
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would be in the children’s best interests to be “located with their
mother and father in Virginia” by stating, “You understand I
don’t have the jurisdiction to ask Ms. Vanderzon to do anything
in terms of where she lives.” The trial court’s second reference
involved a similar statement in its findings and conclusions
regarding custody that “it does not have the authority to order
either parent to relocate and does not do so here”—a statement
made in a footnote to its acknowledgement that the parties
themselves had resolved the major issue related to proximity by
each volunteering to relocate depending on which parent was
awarded primary custody. While these statements certainly
demonstrate that the court recognized it lacked authority to
order either parent to move to Utah or Virginia, they cannot be
interpreted to suggest that the court harbored any doubt,
whether constitutionally-based or otherwise, about its authority
to make determinations about the children’s best interests, such
as the optimal distance between their parents’ residences.
Likewise, these statements cannot be reasonably interpreted to
suggest that the court had in mind the questions Heidi raises on
appeal relating to her constitutional rights to travel and parent.
Cf. Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (concluding that
an issue was preserved where the district court essentially
provided its own opportunity to rule on an alleged error being
challenged on appeal by deciding “to take up the question” itself
below and “conduct[ing] a thoroughgoing analysis” of the
issue). In other words, the court in this case did not “take up”
the question of how to approach its best interests determinations
in light of the specific constitutional rights Heidi raises on
appeal. Cf. id.¶31 Further, as Heidi appears to acknowledge, she did not
bring her constitutional arguments to the trial court’s attention
during trial. Nor did she make any reference to the constitution
in her motion to amend judgment, even though she raised the
issue of the proximity requirement there. Cf. Dickman Family
Props., Inc. v. White, 2013 UT App 116, ¶¶ 12–13, 302 P.3d 83320140946-CA 16 2017 UT App 150Vanderzon v. Vanderzon
(concluding that the appellants had not preserved an argument
for appeal where they had been “unambiguously alerted”
during a bench hearing regarding the court’s “conception” about
the point of law they disputed but failed to bring their argument
“to the court’s attention” at that time or in their subsequent
objection to the court’s proposed order). Thus, it does not appear
that Heidi ever presented the court with an opportunity to
consider whether its twenty-five-mile proximity order was
constitutionally impermissible in light of Heidi’s rights to travel
and to parent. Cf. Brookside Mobile Home Park, 2002 UT 48, ¶ 14;
see also Wolferts v. Wolferts, 2013 UT App 235, ¶ 22, 315 P.3d 448(concluding that the appellant did not preserve the
constitutional argument she made on appeal that “limiting her
participation to only cross-examination of the witnesses
deprived her of her constitutional right to testify and present
evidence,” where she made a general objection about the court’s
constraints on her presentation of testimony but “did not assert
[to the trial court] that she had a constitutional right” to call
witnesses and testify).
¶32 Nevertheless, Heidi contends that if her constitutional
arguments are unpreserved, we should review them for plain
error. “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful . . . .” Holgate, 2000
UT 74, ¶ 13 (brackets, citation, and internal quotation marks
omitted). “To establish that the error should have been obvious
to the trial court, the appellant must show that the law
governing the error was clear at the time the alleged error was
made. Thus, an error is not obvious if there is no settled
appellate law to guide the trial court.” Thomas v. Mattena, 2017
UT App 81, ¶ 13, 397 P.3d 856 (citations and internal quotation
marks omitted). An error is prejudicial if, “absent the error, there
is a reasonable likelihood of a more favorable outcome for the
appellant.” Berkshires, LLC v. Sykes, 2005 UT App 536, ¶ 21, 127
P.3d 1243 (citation and internal quotation marks omitted). Heidi
20140946-CA 17 2017 UT App 150Vanderzon v. Vanderzon
contends that the error was so obvious that the trial court even
twice acknowledged “that it did not have authority to do what it
ultimately did.” And she argues the error was prejudicial
because it “infringed upon [her] right to travel, to choose where
she lives, and to parent the way she sees fit, without analysis of
whether the twenty-five-mile radius was in fact justified by a
compelling state interest.”
¶33 We do not agree that the alleged error would have been
obvious to the trial court. As we have noted, the court
acknowledged only that it could not order her to relocate; it did
not suggest that it could not make a custody determination
about the children’s best interests in light of Heidi’s particular
constitutional rights. And Heidi has not otherwise demonstrated
that the law governing the alleged constitutional errors was clear
in Utah at the time the court made its ruling. See State v. Dean,
2004 UT 63, ¶ 18, 95 P.3d 276 (explaining that an error was not
obvious where both Utah and federal case law “was not
sufficiently clear or plainly settled” on the issue being
challenged); Larsen v. Johnson, 958 P.2d 953, 956 (Utah Ct. App.
1998) (concluding that an alleged error was not obvious under
plain error review where “the law in Utah and in other
jurisdictions is unsettled on this point”).
¶34 For example, Heidi contends that “the federal
constitutional right to travel includes the right to choose where
one lives and the right to intrastate travel,” and she cites several
federal cases in support, including Saenz v. Roe, 526 U.S. 489, 500
(1999), and Jones v. Helms, 452 U.S. 412, 417–18 (1981). But these
cases did not involve a state court’s authority to decide where a
child should live in the context of a best interests determination
in a custody case. E.g., Saenz, 526 U.S. at 492–98 (presenting a
challenge under the Privileges or Immunities Clause of the
Fourteenth Amendment to the United States Constitution to a
state statute that limited the level of welfare benefits to newly-
arrived state residents who had resided in the state for less than
twelve months); Jones, 452 U.S. at 414–15 (presenting a challenge
20140946-CA 18 2017 UT App 150Vanderzon v. Vanderzon
under the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution to a state statute
that increased the degree of offense from misdemeanor to felony
if a parent willfully and voluntarily abandoned his or her
dependent child and then left the state). She also contends that
“[s]everal states have recognized the right of intrastate travel as
a component of the right of interstate travel,” citing In re White,
158 Cal. Rptr. 562, 567 (Cal. Ct. App. 1979), and In re Marriage of
Guffin, 2009 MT 169, ¶ 11, 209 P.3d 225. The courts in those cases
determined that there is a right to intrastate travel within their
own states and under their own constitutions, but expressly
noted that no such right has been found under the federal
constitution. See, e.g., In re White, 158 Cal. Rptr. at 567 & n.3; In re
Marriage of Guffin, 2009 MT 169, ¶ 11 (explaining that “[t]he
federal decisions confirming the right of interstate travel have
expressly not decided whether intrastate travel is part of the
same right”); see also D.L. v. Unified School Dist. No. 497, 596 F.3d
768, 776 (10th Cir. 2010) (explaining that, under the Fourteenth
Amendment, the “substantive due process rights to travel and to
establish a residence” “apply only to interstate travel,” not
intrastate travel). Heidi cites no Utah case law suggesting that
the right of interstate travel has been interpreted to include the
right to intrastate travel, much less in the context of a
determination of a child’s best interests in a custody context. Nor
has she pointed us to any dispositive federal case. Thus, she
essentially asks us to decide as a matter of first impression based
on an analysis of federal and other-state case law that, in Utah,
the Federal Constitution’s right to interstate travel includes the
right of intrastate travel and the right to establish a residence,
and then apply this concept to circumscribe a trial court’s
authority in a custody case to make determinations about where
children ought to reside based on their best interests under all
the circumstances. To establish that the error should have been
obvious to the trial court, Heidi “must show that the law
governing the error was clear at the time the alleged error was
20140946-CA 19 2017 UT App 150Vanderzon v. Vanderzon
made.” 4 See Dean, 2004 UT 63, ¶ 16. Heidi has not met that
burden here.
¶35 Heidi also argues that the proximity requirement
impermissibly infringes on her right to parent, which includes
the right to choose where her children live and go to school. She
contends that “[t]he right to parent is a fundamental right in
Utah” and that Utah has recognized that an infringing action is
subject to strict scrutiny review. See Jones v. Jones, 2013 UT App
174, ¶¶ 10–11, 25, 307 P.3d 598, aff’d, 2015 UT 84, 359 P.3d 603.
She then argues that the court’s proximity order is “not narrowly
tailored to achieve a compelling state interest.” However,
“parental rights are not absolute,” see id. ¶ 11, and Heidi
concedes that Utah has not “determined what constitutes a
‘compelling state interest’ when determining whether a parent’s
right to custody can be conditioned on a parent living in a
particular location.” Nonetheless, she contends that we should
“look to other areas of Utah law, and the law of other states, for
guidance,” essentially conceding that these contentions, too,
involve a matter of first impression in Utah. It necessarily
follows that it would not have been obvious to the trial court
that its proximity requirement—one made in the context of its
custody determinations regarding the children’s best interests—
impermissibly infringed on her right to parent. See Dean, 2004
UT 63, ¶¶ 16, 18.
¶36 Accordingly, Heidi has not borne her burden of
demonstrating that the court plainly erred in failing to consider
her constitutional rights to travel and parent in adopting the
4. Heidi also argues that the court impermissibly conditioned her
primary custody award on living within twenty-five miles of
John’s residence by requiring her to forfeit her custody if she
relocated outside of the twenty-five-mile radius. We have
explained that the court’s orders cannot reasonably be
interpreted in the way she suggests. Supra ¶¶ 26–27.
20140946-CA 20 2017 UT App 150Vanderzon v. Vanderzon
proximity requirement or in declining to adopt her proposed
alterations to it.
II. The Alimony Determinations
¶37 Heidi argues that the court erred when it calculated
alimony. In particular, she contends that the court erred by
imputing too much income to her, calculating alimony based
upon her gross rather than her net monthly income, failing to
equalize the shortfall between the parties, and failing to consider
the tax consequences of Heidi’s alimony award. She contends
that her arguments are preserved, but also that if they are not,
we should review them for plain error.
¶38 As we discussed above, 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.” Brookside
Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968.
Heidi appears to claim that her arguments were preserved
because the trial court addressed the subject matter on which her
arguments are based in its preliminary findings of fact and
partial decree of divorce and in the court’s subsequent findings
of fact and conclusions of law. This is essentially the same
preservation argument she made with regard to her
constitutional claims discussed above, and it fails for the same
reason. While the court’s own findings and orders indicate that
the court considered the components of an alimony
determination, they do not demonstrate that the court
considered the particular arguments Heidi now makes on appeal
or that Heidi provided the court with an adequate opportunity
to correct the errors she now asserts. See Dickman Family Props.,
Inc. v. White, 2013 UT App 116, ¶¶ 9, 12–13, 302 P.3d 833. Thus,
we conclude that her specific arguments regarding the court’s
alimony determinations have not been preserved for appeal, see
id., and we review them for plain error.
20140946-CA 21 2017 UT App 150Vanderzon v. Vanderzon
¶39 “To prevail on a claim of plain error, the appellant must
show obvious, prejudicial error.” State v. Hare, 2015 UT App 179,
¶ 9, 355 P.3d 1071. We conclude that the court’s equalization
analysis constituted plain error and remand for further
proceedings. And because the issues Heidi raises about income
imputation and child care may arise again in the course of the
court’s reconsideration of its alimony award on remand, we
briefly address them as well.
A. Income Equalization
¶40 Heidi argues that the court failed to properly equalize the
parties’ incomes in the course of its alimony determination. In
particular, she contends that the court “assigned almost all of the
shortfall” in income to her. She also argues that the trial court
erred by using her gross income to calculate her unmet needs
while using John’s net income to determine his ability to pay and
that the court erred by failing to equally divide the tax
consequences of her alimony award between the parties.
¶41 “Trial courts have considerable discretion in determining
alimony . . . and [determinations of alimony] will be upheld on
appeal unless a clear and prejudicial abuse of discretion is
demonstrated.” Jensen v. Jensen, 2008 UT App 392, ¶ 5, 197 P.3d
117 (alteration and omission in original) (citation and internal
quotation marks omitted). Alimony determinations require a
trial court to consider three factors relevant here: “(i) the
financial condition and needs of the recipient spouse; (ii) the
recipient’s earning capacity or ability to produce income; [and]
(iii) the ability of the payor spouse to provide support.” Utah
Code Ann. § 30-3-5(8)(a)(i)-(iii) (LexisNexis 2013); see also
Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 8, 80 P.3d 153.
¶42 In considering an alimony award, “the court should first
assess the needs of the parties, in light of their marital standard
of living.” Dobson v. Dobson, 2012 UT App 373, ¶ 22, 294 P.3d
591. If the court finds that the recipient spouse—here, Heidi—is
20140946-CA 22 2017 UT App 150Vanderzon v. Vanderzon
“able to meet her own needs with her own income based upon
the expenses she reasonably incurred, . . . then it should not
award alimony.” Id. However, if the court finds that the recipient
spouse is not able to meet her own needs, “then it [should]
assess whether [the payor spouse’s] income, after meeting his
needs, is sufficient to make up some or all of the shortfall
between [the recipient spouse’s] needs and income.” Id. If the
parties’ combined resources are insufficient to meet both parties’
needs, the court should “equalize the incomes of the parties.” See
id. (citation and internal quotation marks omitted).
¶43 Equalization of income is “better described as
equalization of poverty” or, more specifically, as the equalization
of “shortfall.” Kidd v. Kidd, 2014 UT App 26, ¶ 26, 321 P.3d 200(citation and internal quotation marks omitted). This approach is
reserved for use “only in those situations in which one party
does not earn enough to cover his or her demonstrated needs
and the other party does not have the ability to pay enough to
cover those needs.” Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246
P.3d 173. “When this situation arises, the trial court must
determine how to equitably allocate the burden of insufficient
income that occurs when the resources that were sufficient to
cover the expenses of a couple must now be stretched to
accommodate the needs of two individuals living separately.”
Keyes v. Keyes, 2015 UT App 114, ¶ 39, 351 P.3d 90. Because both
the propriety of and the calculations necessary for equalization
are tied to findings regarding the parties’ respective needs and
income, a court must conduct an adequate needs analysis to
properly equalize shortfall. See Dobson, 2012 UT App 373, ¶ 21;
Batty v. Batty, 2006 UT App 506, ¶¶ 4–6, 153 P.3d 827 (explaining
that it is improper for the court to award alimony “as simply an
income equalization concept” without going through the
required needs analysis (internal quotation marks omitted)).
And we have also concluded that a court exceeds its discretion
by inequitably dividing the shortfall between the parties. See
Keyes, 2015 UT App 114, ¶¶ 38–42 (concluding that the court
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abused its discretion in its equalization analysis when its award
to the wife left the husband “with essentially no income for basic
necessities”). This is because “[t]he purpose of equalization is to
ensure that when the parties are unable to maintain the standard
of living to which they were accustomed during marriage, the
shortfall is equitably shared.” Kidd, 2014 UT App 26, ¶ 26.
¶44 In this regard, we have observed that “[e]xact
mathematical equality of income is not required, but sufficient
parity to allow both parties to be on equal footing financially as
of the time of the divorce is required.” Howell v. Howell, 806 P.2d
1209, 1213 n.3 (Utah Ct. App. 1991). This principle recognizes
that, under circumstances where one spouse’s legitimate needs
exceed the other spouse’s, an unequal division of available
income may still result in an equitable sharing of the shortfall.
See, e.g., Kidd, 2014 UT App 26, ¶¶ 25–26 (affirming a shortfall
equalization where the receiving spouse shouldered a heavier
financial shortfall in circumstances where the payor spouse had
to exert “extra effort” to attain his income because he had to
commute and work in a remote location and had higher monthly
expenses as a result, including approximately $900 a month for
transportation and rent related to his work); cf. Hansen v. Hansen,
2014 UT App 96, ¶¶ 3–4, 13, 325 P.3d 864 (affirming an
equalization analysis that left both parties with an equal monthly
shortfall of $521).
¶45 We conclude that the trial court in this case plainly erred
by equalizing monthly income between the parties even though it
had determined that Heidi’s reasonable needs were significantly
greater than John’s, thus burdening her with an inequitable
portion of the shortfall between the parties’ resources and the
expenses of maintaining separate households. We also conclude
that the court plainly erred by using Heidi’s gross income to
calculate her needs while using John’s net income to assess his
ability to provide support. And because the court will be
required to reassess its overall alimony determinations, the court
20140946-CA 24 2017 UT App 150Vanderzon v. Vanderzon
may reconsider on remand whether to equitably allocate the tax
consequences of the alimony award between the parties.
1. Failure to Equalize the Parties’ Income Shortfall
¶46 The trial court made findings related to the three basic
alimony factors. The court imputed gross monthly income to
Heidi of $2,846 but did not determine what her net monthly
income would likely be with that level of gross pay. It found that
her demonstrated monthly expenses were $14,758, which
included child-related expenses. And after deducting Heidi’s
imputed gross monthly income and the $3,613 it had awarded
for child support, the court determined that she was left with an
unmet monthly need of “roughly $8,300.”
¶47 The court found that John’s gross monthly income was
$26,667 but then went on to reduce that figure by taxes and other
deductions to arrive at a net monthly income of $19,733. After
deducting John’s $3,613 child support obligation from his net
monthly income, the court determined that John was left with
$16,120 to meet his monthly expenses. The court then found that
John’s demonstrated expenses were $10,000 per month and that
he was therefore left with a monthly surplus of $6,120 to help
support Heidi, which was “ultimately insufficient to satisfy
Heidi’s unmet need” of $8,300. As a result, the court’s analysis
demonstrated that the parties’ combined resources were
insufficient to meet their needs, thus requiring the court “to
ensure that . . . the shortfall is equitably shared.” Kidd, 2014 UT
App 26, ¶ 26.
¶48 Rather than use its own findings to equalize the shortfall,
however, the court instead turned to schedules and calculations
offered by John’s alimony expert. John’s expert had prepared
schedules for both parties, with separate calculations for Utah
and Virginia. The schedules used the court’s income
determinations for both parties and accounted for tax
consequences for each, but they did not appear to incorporate
20140946-CA 25 2017 UT App 150Vanderzon v. Vanderzon
the court’s findings of either parties’ needs. Rather, the expert’s
calculations claimed to be based upon the assumption that John
and Heidi would equally share custody of the children and
reside in the same state and that, as a result, the parties would
each incur the same expenses in order to maintain equivalent
standards of living. In other words, the expert appears to have
assumed that the parties’ living expenses would be equal, and
his calculations proposed to equalize the parties’ standards of
living by equalizing their income. The expert’s schedules thus
represented that awarding Heidi a total support payment—child
support and alimony—of roughly $10,000 per month would give
both parties a net monthly income of about $10,240, which the
expert asserted would allow both parties to maintain equivalent
standards of living.
¶49 The trial court adopted the expert’s Virginia schedule
and, based on the expert’s calculations, decided that the
schedule’s recommendation of a $10,000 total support award
would accomplish the task of equitably equalizing the parties’
net monthly incomes. The court then calculated John’s alimony
obligation by deducting the monthly child support payment it
had previously ordered him to pay—$3,613—from the $10,000
overall support obligation, arriving at a figure of $6,387, which it
rounded up to a $6,400 alimony award to be paid monthly by
John to Heidi. The court stated that this would provide both
parties with an “essentially identical” “after tax cash flow” and
“would leave both parties with an essentially identical shortfall
in the amounts needed to meet their monthly needs.”
¶50 Heidi contends, in essence, that the court plainly erred
when it determined that the recommendations of John’s expert
equalized the shortfall between the parties. We agree. Even
under the higher burden of persuasion attendant to a plain error
review, we conclude that the error should have been obvious
based on the court’s own findings that the parties had materially
disparate needs, and that it was prejudicial because it resulted in
a facially inequitable alimony award.
20140946-CA 26 2017 UT App 150Vanderzon v. Vanderzon
¶51 Before the court turned to the report of John’s alimony
expert, it had determined that there was an approximately
$2,180 shortfall in the combined income available to meet Heidi’s
needs (John’s available $6,120 subtracted from Heidi’s $8,300
unmet need). And the court apparently concluded that the
calculations of John’s expert resolved the shortfall equitably. But
nowhere in the report do we see any reference to the needs
determinations that the court made for each party after trial. In
other words, the expert report does not appear to have analyzed
alimony in terms of the parties’ needs using the actual needs the
court ultimately determined. Instead, the expert stated that his
recommended support award for Heidi was based upon the
assumption that the parties would share custody equally and
would incur equal expenses to support themselves and their
children, a conclusion that appears to be significantly different
from the court’s own determination. The expert did not attempt
to equitably equalize the parties’ shortfall in light of their
disparate needs. Thus, by resting its decision on the expert’s
recommendation of a total support award in the amount of
$10,000, the court seemed to arrive at an alimony award that
failed to equalize the parties’ combined shortfall in available
income in light of the court’s own differential needs analysis. See
Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117 (explaining
that it is improper to equalize parties’ incomes without the
traditional needs analysis).
¶52 In this regard, Heidi’s contention—that the court’s
reliance on the expert’s calculations left her with the burden of
nearly all of the shortfall—has merit. Before adopting the
expert’s calculations, the court determined that Heidi had an
unmet need of $8,300, after deducting her imputed income and
child support. The court then concluded that John had $16,120
available to cover his expenses and to support Heidi after child
support and taxes and ultimately determined that John had
$6,120 left for Heidi’s support. The court’s $6,400 alimony award
thus left Heidi with a $1,900 monthly shortfall ($6,400 subtracted
20140946-CA 27 2017 UT App 150Vanderzon v. Vanderzon
from her demonstrated unmet need of $8,300). In contrast, this
award left John with only a $280 monthly shortfall (the $6,400
award subtracted from the $6,120 he had available to pay). Put
another way, between the court’s alimony award, child support,
and imputed income ($6,400 plus $3,613 plus $2,846), Heidi
appears to have been left with $12,859 in income to meet $14,758
of expenses. In contrast, the court’s alimony and child support
awards appear to have left John with $9,720 in income ($19,733
in income minus combined support of $10,013) to meet his
monthly needs of $10,000. Thus, because the court had already
determined that the expenses of each party were reasonable, its
decision to equalize income rather than shortfall—even though
Heidi’s needs were greater than John’s—appears to have left
Heidi to bear significantly more of the burden of insufficient
resources than John.
¶53 Granted, it is nearly impossible for us to reconcile the
components of the court’s needs analysis with the assumptions
that the expert relied on to reach the conclusions in the report on
which the court relied. As a result, we may have misunderstood
key underpinnings of the court’s ultimate alimony
determination based on that report. But absent further
explanation by the court to reconcile the apparent analytical
disparities between the court’s own needs determinations and
the expert’s calculations, the trial court’s alimony award appears
to be facially inequitable. See Keyes v. Keyes, 2015 UT App 114,
¶ 39, 351 P.3d 90 (explaining that “the burden of insufficient
income” must be “equitably allocate[d]” between the parties for
purposes of equalization); see also Roberts v. Roberts, 2014 UT App
211, ¶ 22, 335 P.3d 378 (vacating and remanding the district
court’s alimony award where the findings were inadequate to
address and resolve the issues raised regarding alimony). And
this inequity seems obvious, based on the contrast between the
court’s own determination that the parties had significantly
differing needs and the expert’s assumption of equal living
expenses for both.
20140946-CA 28 2017 UT App 150Vanderzon v. Vanderzon
¶54 Accordingly, we must vacate the alimony award and
remand for further consideration or, in the alternative, for the
court to more adequately justify it based on the evidence at trial.
2. The Failure to Consider Both Parties’ Tax Consequences
¶55 Heidi also argues that the court plainly erred by imputing
gross income to her for purposes of its needs analysis but
calculating John’s income available for support based on his net
income. We agree.
¶56 It is well settled that alimony awards should be equitable.
See Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (explaining
that courts are required to “consider all relevant facts and
equitable principles” in making alimony awards); Jones v. Jones,
700 P.2d 1072, 1074 (Utah 1985) (explaining that “the trial court
may make such orders concerning property distribution and
alimony as are equitable”). Heidi is correct that the court
imputed gross income to her in determining her ability to
support herself, while using John’s net income to determine his
ability to provide support to her. In its preliminary findings and
conclusions, the court imputed to Heidi a gross yearly income of
$34,150, based upon the vocational expert’s report. The
vocational expert did not adjust her estimated income for
resulting taxes; the expert simply noted that as a public relations
specialist, Heidi could earn $34,150 yearly or $2,845.83 monthly.
The court imported this preliminary imputation determination
into its final findings and conclusions, noting that it had
previously ruled that “Heidi is capable of earning $2,846.00 per
month,” and imputing that amount to her. The court did not
determine what her net monthly income would be, and it used
the gross monthly income to ultimately calculate her unmet
needs.
¶57 By contrast, the court distinguished between John’s gross
and net income. In particular, it found that while John’s monthly
gross income was $26,667, his net monthly income was $19,733.
20140946-CA 29 2017 UT App 150Vanderzon v. Vanderzon
In doing so, the court noted that neither party provided it with
“an effective tax rate or with after tax income of the parties,” but
by averaging John and Heidi’s effective tax rate based on several
years of the parties’ tax returns, the court applied “an effective
tax rate of 26%” to John’s income, something it did not do with
Heidi’s. The court then used John’s net income to calculate his
ability to support Heidi.
¶58 To be sure, we recognize that the trial court ultimately
relied upon John’s alimony expert’s calculations in determining
alimony, and the expert’s calculations did appear to account for
income taxes for both parties. As a result, based upon what the
court purported to do below, the ultimate alimony
determination did account for income tax consequences for
Heidi as well as John. But, as we have explained, it does not
appear that the expert’s ultimate alimony recommendation
accounted for the disparate needs findings that the court actually
made, and we have been unable on appeal to reconcile the
court’s reliance on the expert’s calculations with the court’s
actual needs findings.
¶59 Thus, as it stands, and because the court will be required
to re-evaluate the alimony determination and its reliance upon
John’s alimony expert’s calculations on remand, it seems obvious
from the court’s own findings that it calculated Heidi’s needs
based on her gross monthly income and John’s ability to support
her based on his net monthly income. It would be inequitable to
calculate the parties’ respective incomes in this way, should the
court decide to use its own income calculations on remand,
because it would result in Heidi’s ability to support herself being
unrealistically overvalued and, as a consequence, her unmet
needs being understated in comparison to John’s ability to
provide support. Thus, if the court assesses John’s ability to meet
Heidi’s needs on a net basis, it should ensure that Heidi’s ability
to meet her own needs is also assessed on a net basis. Cf.
McPherson v. McPherson, 2011 UT App 382, ¶¶ 13, 15–16, 265
P.3d 839 (explaining that “[a] sufficiently detailed finding
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regarding . . . the payor spouse’s ability to pay . . . includes
consideration of the payor spouse’s tax obligations,” and
concluding that the court had exceeded its discretion in part by
calculating the husband’s alimony obligation using his gross, not
net, income).
3. The Failure to Consider the Tax Consequences of the
Alimony Award
¶60 Heidi also argues that the trial court plainly erred by
failing to equitably divide the tax consequences of its alimony
award between the parties. She contends that, because she will
be taxed on her alimony award while John can deduct it from his
gross income in calculating his taxable income, the tax effect of
the award should be allocated equitably between them. For
example, she argues that the court should have determined the
taxes Heidi will pay on the alimony award, divided that amount
in two, and required each party to bear exactly half of this
burden. This would further increase her alimony award and
decrease her shortfall, but it would certainly increase John’s
shortfall, as well.
¶61 On remand, the trial court must revisit the alimony award
and may consider allocating the tax burden of the alimony
award between the parties, should it determine that it is
appropriate to do so in the interests of equity. In making this
observation, we note that, contrary to what Heidi appears to
argue, an equitable alimony award does not necessarily mean
that the parties must share burdens in exact mathematical
equality. See Howell v. Howell, 806 P.2d 1209, 1213 n.3 (Utah Ct.
App. 1991) (explaining that “[e]xact mathematical equality of
income is not required, but sufficient parity to allow both parties
to be on equal footing financially as of the time of the divorce is
required”). Rather, in awarding alimony, the court must
“consider all relevant facts and equitable principles.” See Utah
Code Ann. § 30-3-5(8)(e) (LexisNexis 2013). And in no case may
the trial court award Heidi more alimony than her demonstrated
20140946-CA 31 2017 UT App 150Vanderzon v. Vanderzon
need. Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App.
1994) (explaining that the recipient spouse’s demonstrated needs
“constitute the maximum permissible alimony award”).
B. Imputation of Income to Heidi
¶62 Next, Heidi argues that the court plainly erred by
“fail[ing] to adhere to the required imputation analysis set forth”
in Utah Code section 78B-12-203(7). See Utah Code § 78B-12-
203(7) (LexisNexis 2012). 5 She also contends that the court failed
to take into account child care needs as required by section 78B-
12-203(7)(d). In this regard, she asserts that “[b]ecause the court
failed to enter adequate findings, and because the vocational
expert’s report is significantly lacking, the court was
authorized . . . to impute to Heidi only the federal minimum
wage.” As we have noted, Heidi did not bring her arguments
related to income imputation and child care needs to the
attention of the trial court, and therefore, they were not
preserved below. She requests that we address these issues
under the plain error doctrine, contending that the error was
obvious because “the trial court failed to adhere to the statutory
scheme plainly set forth” in section 78B-12-203(7) and that the
error was harmful because the court imputed too much income
to her. We conclude that the court did not plainly err.
¶63 In determining an alimony award, the trial court is
required to consider the recipient spouse’s “earning capacity or
ability to produce income.” Utah Code Ann. § 30-3-5(8)(a)(ii)
(LexisNexis 2013). A trial court “may impute income to an
underemployed spouse.” Fish v. Fish, 2010 UT App 292, ¶ 14, 242
P.3d 787 (citation and internal quotation marks omitted). Any
income imputation must “be based upon employment potential
5. Utah Code section 78B-12-203 was recently amended, with the
amendment to take effect in May 2017. We cite the provisions in
effect at the time of the trial.
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and probable earnings as derived from employment
opportunities, work history, occupation qualifications, and
prevailing earnings for persons of similar backgrounds in the
community.” Utah Code Ann. § 78B-12-203(7)(b). “If a parent
has no recent work history[,] . . . income shall be imputed at least
at the federal minimum wage for a 40-hour work week,” and if
greater income is imputed, “the judge . . . shall enter specific
findings of fact as to the evidentiary basis for the imputation.” Id.
§ 78B-12-203(7)(c). Nonetheless, income may not be imputed if
“the reasonable costs of child care for the parents’ minor
children approach or equal the amount of income the custodial
parent can earn.” Id. § 78B-12-203(7)(d)(i). We conclude that
Heidi has not demonstrated that the trial court plainly erred in
its findings or by adopting the vocational expert’s report and
testimony to support its decision to impute income.
¶64 Heidi argues that the trial court’s findings supporting its
decision to impute income are inadequate. She also argues that
the court’s findings cannot be “inferred from the vocational
expert’s report or testimony,” because the vocational expert’s
analysis “does not account for the fact that Heidi lacks the skills
to obtain employment without spending time and money to
update those skills”; does not address Heidi’s concerns
regarding other barriers to employment; and “says nothing
about [Heidi’s] employability in Virginia.” Finally, Heidi claims
that neither the expert nor the court considered the cost of child
care in relation to her earning capacity or any special needs of
her children as the imputation statute requires.
1. The Court’s Imputation Findings and the Vocational
Expert’s Report
¶65 Heidi is correct that the trial court’s own findings in
support of its imputation determination were not exhaustive:
“Based on the testimony of the vocational expert, . . . and the
parties, the Court determined that the income of $34,150 per year
should be attributed to [Heidi].” And according to the
20140946-CA 33 2017 UT App 150Vanderzon v. Vanderzon
imputation statute, because it was undisputed that Heidi had
“no recent work history,” the court was required to “enter
specific findings of fact as to the evidentiary basis” to justify
imputing more than federal minimum wage. See Utah Code
Ann. § 78B-12-203(7)(c). However, we may affirm if we can infer
the necessary findings from the vocational expert’s report and
testimony. See Rayner v. Rayner, 2013 UT App 269, ¶ 11, 316 P.3d
455 (explaining that we may affirm “the trial court’s decision to
impute income, absent outright expression of the statutorily
mandated finding, if the absent findings can reasonably be
implied” by the evidence (citation and internal quotation marks
omitted)). And here, the expert’s report addresses all of the
factors required by section 78B-12-203(7)(b), which states that
income imputation “shall be based upon employment potential
and probable earnings as derived from employment
opportunities, work history, occupation qualifications, and
prevailing earnings for persons of similar backgrounds in the
community.”
¶66 The report addressed Heidi’s “potential and probable
earnings” based on employment possibilities the vocational
expert identified as within Heidi’s capabilities, concluding that
among the best options were public relations specialist, market
research analyst, and general sales representative. The expert
included comparisons of the entry-level salary and earnings
potential for each of the options. She noted that Heidi had
bachelor’s degrees in History and Russian with a minor in Soviet
Studies, and that she had worked as a Russian translator from
1990 to 1997. While the expert concluded that Heidi’s skills as a
Russian translator were likely not “transferable at present due to
the length of time since she has used the Russian language,” she
also noted that Heidi’s occupational qualifications nevertheless
included her college education and degrees, as well as some
computer skills. The expert accordingly recommended entry-
level positions that would capitalize on her degrees as well as
allow her to gain experience in another field. In this regard, the
20140946-CA 34 2017 UT App 150Vanderzon v. Vanderzon
report indicated that a bachelor’s degree was required for two of
the three recommended positions—entry-level public relations
specialist and market research analyst.
¶67 The vocational expert’s testimony at trial corroborated the
information she included in her report. She testified that, based
on Heidi’s education and the results of vocational testing, she
“thought that some of the best options for [Heidi] would be
public relations specialist, also market research analyst, and then
a general sales representative.” And she testified about the
starting salary for each of the three options as well as a salary
Heidi could attain if she maximized her earning potential—for
the public relations specialist the entry-level salary was $34,150
yearly, or approximately $2,846 per month.
¶68 Contrary to Heidi’s claims, the expert’s analysis does
address barriers to Heidi’s employment. For example, the expert
addressed “the fact that Heidi lacks the skills to obtain
employment without spending time and money to update those
skills.” The expert testified that Heidi would need to “update her
skills in some areas to qualify for these positions,” such as
computer skills, but she considered those challenges to be
relatively “small things,” requiring, for example, about three
months of training for a maximum cost of $300 to $400 to update
Heidi’s computer skills.
¶69 The expert also “address[ed] Heidi’s concerns regarding
other barriers to employment.” The report listed Heidi’s
perceived barriers, including her mandatory volunteer
commitments at her children’s schools, child care needs, the jobs
she could qualify for not offering her enough money, re-entering
the work force after a lengthy employment gap, the added stress
of being a working mother, and being able to pursue more
education. The expert acknowledged during trial that these were
barriers that Heidi might “face getting back into the workforce.”
In addition, the report mentioned other employability deficits
the expert considered applicable, such as Heidi’s lack of up-to-
20140946-CA 35 2017 UT App 150Vanderzon v. Vanderzon
date computer skills, recent work experience, and a return-to-
work plan. Because all of these concerns about Heidi’s
employability were included in the report and in the expert’s
testimony, it cannot be obvious that the expert failed to address
them or that the trial court failed to take them into account in
making its imputation determination and ultimately accepting
the evaluator’s recommendations. See Rayner, 2013 UT App 269,
¶ 11.
¶70 Further, Heidi has pointed to no evidence presented to
the trial court that would have elevated her particular
employability concerns above those normally experienced by
other working parents. Indeed, as to child care, the only
evidence she points to on appeal is her testimony that she would
have to find surrogate care to “have the kids taken care of” while
she worked. Cf. id. (explaining that missing findings may be
harmless where “the undisputed evidence clearly establishes the
factor or factors on which findings are missing” (citation and
internal quotation marks omitted)). And she does not identify
any other evidence presented at trial that might have
undermined the significance of her college degrees in the
vocational expert’s and the court’s determination that she would
be qualified for entry-level positions with starting salaries higher
than the federal minimum wage. Cf. id. It cannot be plain error
for a trial court to rely on the conclusions and recommendations
in a vocational expert’s report and testimony to impute income
when the report and testimony address the required factors in
Utah Code section 78B-12-203 and the party challenging the
determination presented limited or no evidence to refute the
relevant areas of the expert’s assessment.
¶71 Finally, while Heidi is correct that the report does not
address her employability in Virginia, the vocational expert
testified that she considered only Utah employability because
Heidi “had indicated that she’d planned to stay [in Utah].” As
the trial court also noted, before trial Heidi “maintained that
under no circumstances would she move back to Virginia” and
20140946-CA 36 2017 UT App 150Vanderzon v. Vanderzon
she did not retract that position until the second day of trial. We
cannot fault either the expert or the court for failing to consider
employability in Virginia under the circumstances. Cf. State v.
Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (explaining that, under
the invited error doctrine, appellate review of an issue is
precluded because “a party cannot take advantage of an error
committed at trial when that party led the trial court into
committing the error” (citation and internal quotation marks
omitted)).
2. The Statutory Exceptions to Income Imputation
¶72 Heidi also argues that the court plainly erred by
“overlook[ing] the question of child care” contrary to the
requirement of Utah Code section 78B-12-203(7)(d). She contends
that the trial court ought to have factored in the cost of child care
in Virginia to determine whether that amount “approach[ed] or
equal[ed] the amount of income [she] could earn.” See Utah
Code Ann. § 78B-12-203(7)(d)(i) (LexisNexis 2012). She also
argues that the court ought to have considered whether
“unusual emotional or physical needs” of her children
“require[d] [her] presence in the home.” See id. § 78B-12-
203(7)(d)(iv). But Heidi has pointed to no evidence presented at
trial regarding the costs of child care in either Utah or Virginia.
And even if she had, the trial court ordered that “[t]he parties
shall share equally any reasonable or work related child care
costs” and awarded Heidi child support of roughly $3,600 a
month. Thus, to the extent that Heidi might incur child care costs
while working, both parties would bear those costs, alleviating
some strain on her income. Similarly, she has identified no
evidence that her children had unusual needs that would
preclude her from working.
¶73 Because income imputation was a significant issue at trial
and Heidi has not identified any point during or after trial that
she called any imputation exception to the trial court’s attention,
it would not have been obvious to the trial court that Heidi’s
20140946-CA 37 2017 UT App 150Vanderzon v. Vanderzon
potential child care costs or her children’s particular needs
implicated statutory exceptions to imputation of income in her
case. It cannot be plain error for a court to make no findings
about such an issue when it was not raised, and Heidi cannot
show prejudice if the trial court was provided no evidence from
which it might have made a different decision. Berkshires, LLC v.
Sykes, 2005 UT App 536, ¶ 21, 127 P.3d 1243 (explaining that an
error is prejudicial if, “absent the error, there is a reasonable
likelihood of a more favorable outcome for the appellant”
(citation and internal quotation marks omitted)).
III. The Trial Court’s Attorney Fees Determinations
¶74 Heidi argues that the trial court erred in denying her
request for attorney fees and costs related to her discovery
efforts involving John’s interest in and work with Sun
Management. She contends that the court failed to consider the
required factors for awarding fees. And she contends that the
trial court’s reasons for denying fees are otherwise “inconsistent,
inequitable, and unsupported by the record.” We affirm the trial
court’s attorney fees determination.
A. Failure to Consider the Attorney Fees Factors
¶75 Heidi first argues that the court failed to consider the
appropriate factors for awarding attorney fees. Quoting Ouk v.
Ouk, 2015 UT App 104, 348 P.3d 751, she asserts that although
“the decision to award fees and the amount of such fees are
within the trial court’s discretion,” the trial court failed to
address the required factors: “evidence of the financial need of
the receiving spouse, the ability of the other spouse to pay, and
the reasonableness of the requested fees.” See id ¶ 16 (citations
and internal quotation marks omitted). And she contends that
the reasons the court did give for its denial of fees are incorrect
as a matter of law.
20140946-CA 38 2017 UT App 150Vanderzon v. Vanderzon
¶76 Below, Heidi requested that the trial court award her all
the fees and costs she had incurred in the case and, in the
alternative, she asked for an award of the fees related to the Sun
Management discovery. Both requests were made under Utah
Code section 30-3-3, which provides,
[I]n any action to establish an order of custody,
parent-time, child support, alimony, or division of
property in a domestic case, the court may order a
party to pay the costs, attorney fees, and witness
fees, including expert witness fees, of the other
party to enable the other party to prosecute or
defend the action.
Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). In determining
whether to award fees under this section, the trial court must
consider the requesting spouse’s financial need, the other
spouse’s ability to pay, and the reasonableness of the fees. See
Ouk, 2015 UT App 104, ¶ 16.
¶77 On appeal, Heidi does not challenge the trial court’s
decision to deny an award of all her fees. Rather, she contends
that the court failed to consider the required factors in denying
her Sun Management fees request. But by focusing on only the
court’s findings related to Sun Management, Heidi fails to
consider the court’s decision in the context of all of its findings
related to attorney fees. Our approach to interpretation of
judicial orders is similar to the way we interpret contracts. Iota
LLC v. Davco Mgmt. Co., 2016 UT App 231, ¶ 33, 391 P.3d 239. “In
interpreting a contract, [w]e look to the writing itself to ascertain
the parties’ intentions, and we consider each contract
provision . . . in relation to all of the others, with a view toward
giving effect to all and ignoring none.” WebBank v. American Gen.
Annuity Service Corp., 2002 UT 88, ¶ 18, 54 P.3d 1139 (alteration
and omission in original) (citation and internal quotation marks
omitted); see also New York Ave. LLC v. Harrison, 2016 UT App
240, ¶ 21, 391 P.3d 268 (explaining that we interpret a contract
20140946-CA 39 2017 UT App 150Vanderzon v. Vanderzon
“as a whole” according to its plain language). Thus, rather than
focusing narrowly on the court’s denial of Heidi’s request for the
Sun Management discovery costs and fees, we consider the
court’s decision in relation to all of the findings and
determinations it made as to the parties’ requests for attorney
fees.
¶78 This approach is especially appropriate here for two
reasons. First, Heidi requested an award of fees for the whole
case or, in the alternative, for only the Sun Management portion,
and she requested both under section 30-3-3(1). And second, the
court analyzed her request for Sun Management-related attorney
fees in a single order addressing that narrower request within
the broader context of its observations on the parties’ approach
to the whole litigation. Viewed in that light, it is apparent that
the court addressed the required factors in denying Heidi her
fees and costs.
¶79 In its final findings of fact and conclusions of law, the
court found,
At the beginning of this case, the parties had
roughly $1.8 million in liquid assets available to
them jointly, and this fund was used to pay both
parties’ attorneys’ fees and costs. Because these
joint funds were available to and were used by the
parties to fund the litigation, the court cannot
conclude that either party is in greater need of
funds for the litigation or that either party lacked
sufficient resources to pay for attorneys’ fees and
costs.
¶80 The court also noted that the total attorney fees in the case
amounted to approximately $1.2 million—in other words, that
the fees spent had not yet exceeded the assets available for fees.
But it noted that nevertheless “substantially all of the assets
available for division among the parties have been spent by
20140946-CA 40 2017 UT App 150Vanderzon v. Vanderzon
them on attorneys’ fees and costs—which, of course, the parties
are perfectly free to do.”
¶81 The trial court also made findings regarding the
reasonableness of the fees the parties had incurred in the case as
a whole. The court found that “the custody issues in this case
[were] unusually complex and contentious” and “warranted an
unusual amount of attorney and expert costs.” However, the
court noted that “the majority of the money spent in this case
was on matters unrelated to the custody determination.”
Instead, it found that “[b]oth parties have litigated essentially
every issue in this case aggressively and unreasonably.” And it
found that “both parties have caused the fees and costs in this
case to skyrocket out of control.” Focusing specifically on Heidi’s
approach to the litigation, the court noted that she “chose to
employ numerous different lawyers and law firms to represent
her in the course of this case, filed numerous unnecessary
motions, resisted what should have been simple issues to
resolve, and sought several continuances, all of which drove up
the cost.” And it concluded that “both parties made a conscious,
fully-informed decision to devote to this legal battle the vast
majority of the financial resources available to this estate.” Based
on this reasoning, the court determined that awarding Heidi all
her fees would be “manifestly unjust,” a determination she does
not challenge on appeal.
¶82 With respect to the Sun Management fees in particular,
the court denied Heidi’s request “for at least the following
reasons”: (i) the Sun Management discovery fees and costs were
“offset by fees and costs she forced John to incur as a result of
her own litigation tactics”; (ii) “John’s brother, not John, is
responsible for unnecessarily driving up” the discovery costs,
though the court noted that it believed “John played a
considerable role in this”; and (iii) Heidi “failed to comply with
the court’s May 28, 2014, Minute Entry” setting out the
requirements for submission of fee requests.
20140946-CA 41 2017 UT App 150Vanderzon v. Vanderzon
¶83 When viewed as a whole, the court’s findings clearly
address the statutory factors. The court found that Heidi had no
need for assistance because funds for litigation expenses
remained available in the marital estate, and that due to the
unreasonable litigation tactics of both parties, the fees incurred
had “skyrocket[ed] out of control.” Indeed, the court found that
both parties had “litigated essentially every issue” in the case
unreasonably, a statement broad enough to encompass the
issues related to Sun Management discovery. Heidi fails to deal
with or challenge these findings in her opening brief. 6 Cf.
Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153,
¶ 8, 257 P.3d 441 (explaining that an appellant must address the
basis of the district court’s decision to persuade a reviewing
court that the district court has erred).
¶84 Further, the court’s specific findings related to the Sun
Management fees necessarily incorporate the court’s overall
findings regarding the needs and financial resources of the
parties and the reasonableness of the fees that have been
incurred. See WebBank v. American Gen. Annuity Service Corp.,
6. For the first time in her reply brief, Heidi seems to
acknowledge that the court’s finding regarding the availability
of litigation funds from the $1.8 million in the marital estate
addressed the “need” factor, and in doing so, she contends that
this finding is not sufficient to resolve the issue of Heidi’s need
or John’s ability to pay, particularly in light of the parties’
relative earning potentials and the harsher effect of the marital
estate’s dissipation on Heidi. However, this is essentially an
attack on the correctness of the court’s overall need finding, and
one that Heidi did not attempt to make in her opening brief.
Thus, because she raises this argument for the first time in her
reply brief, we decline to address it. “[W]e do not consider
arguments raised for the first time in an appellant’s reply brief.”
Mower v. Simpson, 2012 UT App 149, ¶ 39, 278 P.3d 1076.
20140946-CA 42 2017 UT App 150Vanderzon v. Vanderzon
2002 UT 88, ¶ 18, 54 P.3d 1139. Indeed, the court’s finding that
the fees Heidi incurred through discovery are offset by fees and
costs she forced John to incur flows directly from its overarching
conclusion that both parties had unreasonably increased the
costs of litigation in the case and that each had made “a
conscious, fully-informed decision to devote to this legal battle
the vast majority of the financial resources available.” 7 We
cannot fault the court for declining to award Heidi her requested
fees after it had determined that she not only did not need an
award of fees to “enable [her] to prosecute” the issues related to
Sun Management, see Utah Code Ann. § 30-3-3(1) (LexisNexis
2013), but also that her request was unreasonable in light of her
overall strategy of “aggressively and unreasonably” litigating
“every issue,” see Dahl v. Dahl, 2015 UT 79, ¶¶ 176, 177–79
(concluding that the appellant’s fee request was unreasonable
where the “litigation strategy . . . was inefficient, ineffective, and
unjustifiably costly”). See also Osguthorpe v. Osguthorpe, 804 P.2d
530, 537 (Utah Ct. App. 1990) (per curiam) (“Before a court will
award attorney fees, the trial court must find the requesting
party is in need of financial assistance and that the fees
requested are reasonable.”).
B. The Denial of Attorney Fees on Other Grounds
¶85 Heidi also claims that, even if the court did address the
statutory factors, the court’s denial of Sun Management fees was
otherwise “inconsistent, inequitable, and unsupported by the
record.” For example, she points out that although the court
7. To the extent Heidi argues that the court’s assessment of the
attorney fee factors is not supported by the record, Heidi’s entire
challenge on this point is one sentence: “Moreover, the court’s
decision is incorrect as a matter of fact because its decision does
not comport with the record.” This is insufficient to persuade us
that the court’s factual findings are clearly erroneous, and we
decline to address this contention further.
20140946-CA 43 2017 UT App 150Vanderzon v. Vanderzon
found that Heidi’s own litigation tactics offset the fees she
incurred related to the Sun Management discovery, John’s
brother testified that Sun Management paid its own fees, which
she asserts allowed Sun Management “to drive up litigation at
Heidi’s expense,” without John himself incurring any
“corresponding expense.” She contends that, as a matter of
equity, the court should have required John to bear half of the
Sun Management fees personally rather than “requiring Heidi to
bear her share of attorney fees while John shares his attorney
fees with his company.” She also contests the trial court’s alleged
finding that she drove up the costs related to the custody
litigation, contending that John was to blame for driving up
those costs.
¶86 But a court making its attorney fees determination in a
divorce case under section 30-3-3(1) is not required to “equalize
the pain in attorney fees and punish both parties equally for
unnecessarily aggravating the litigation.” Attorney fees under
section 30-3-3 are not punitive in nature or awarded to equalize
the “pain” of the litigation between the parties. Cf. Roberts v.
Roberts, 2014 UT App 211, ¶ 47, 335 P.3d 378 (explaining that
“the purpose of divorce proceedings should not be to impose
punishment on either party” (citation and internal quotation
marks omitted)). Rather, they are awarded based on a court’s
assessment of the circumstances surrounding the receiving
party’s need for the fees to “prosecute or defend” the case. See
Utah Code Ann. § 30-3-3(1); Connell v. Connell, 2010 UT App 139,
¶ 29, 233 P.3d 836 (explaining that, under section 30-3-3(1), “the
moving spouse’s need is a sine qua non” of the award);
Ostermiller v. Ostermiller, 2008 UT App 249, ¶ 7, 190 P.3d 13(explaining that “so long as [the wife] has sufficient resources to
meet her needs [for attorney fees], [the husband] need not pay
[the wife’s] attorney fees, even if he has more money at his
disposal with which to pay his own fees and will have more
money to spare than will [the wife]”), aff’d in part, rev’d in part on
other grounds, 2010 UT 43, 233 P.3d 489. As a result, for purposes
20140946-CA 44 2017 UT App 150Vanderzon v. Vanderzon
of section 30-3-3(1), whether Sun Management instead of John
paid the discovery fees is not relevant to the court’s assessment
of whether Heidi needed an award of fees to enable her to
pursue discovery of Sun Management.
¶87 Further, Heidi’s contention regarding the court’s view of
her role in the custody litigation is misplaced. The court made no
finding that suggested Heidi was primarily responsible for
driving up the fees related to custody of the parties’ children.
Instead, it found that Heidi had been responsible “for at least
half—if not more—of the excessive fees and costs that have been
incurred” throughout the entire case, and that although the
custody issues in the case were “unusually complex and
contentious,” “the majority of the money spent in this case was
on matters unrelated to the custody determination.” (Emphasis
added.) Thus, to the extent that Heidi is challenging the court’s
characterization of her role specifically in relation to the custody
fees as a way to argue that the court’s decision was incorrect, we
see no support for her contention in the court’s attorney fees
decision.
¶88 Accordingly, we are not persuaded that the court
exceeded its discretion when it denied Heidi her request for fees
related to Sun Management discovery. 8 Contrary to Heidi’s
assertions, the court did consider the required factors, and we do
not agree that the court’s decision otherwise exceeded its broad
discretion. As a result, we also deny Heidi’s request for attorney
fees on appeal. See Tobler v. Tobler, 2014 UT App 239, ¶ 48, 337
8. Heidi also argues that the trial court erred by concluding that
she waived her entitlement to attorney fees related to Sun
Management by failing to comply with the procedure set out in
its Minute Entry. However, because we conclude that the court’s
denial of her fee request was within its discretion and supported
by its findings, we do not reach the issue of whether the court
incorrectly determined she had waived her fee claim.
20140946-CA 45 2017 UT App 150Vanderzon v. Vanderzon
P.3d 296 (explaining the general rule that “we award appellate
attorney fees and costs when a party was awarded fees and costs
below and then prevails on appeal” and declining to award the
wife the attorney fees incurred for her successful appeal because
the “district court expressly ordered both parties to bear their
own attorney fees and costs”).
CONCLUSION
¶89 Heidi appealed the court’s decisions in this case in three
areas, contending that the court erred in requiring that she reside
in Virginia within twenty-five miles of John; that various of its
alimony determinations were improper; and that she should
have been awarded partial attorney fees and costs below.
¶90 We conclude that the court did not err in establishing the
proximity requirement. Regarding alimony, we conclude that
the court did not err by imputing income to Heidi based upon
the vocational expert’s report. However, we have decided that
the court may have erred by relying upon John’s alimony
expert’s calculations in the way it did. In the alternative, we have
determined the court’s explanation of its equalization decision to
be inadequate to support a conclusion on appeal that it was
equitable. We also conclude that the court erred by using Heidi’s
gross income to calculate her needs while using John’s net
income to determine his ability to pay. On remand, the court
may also consider, in its discretion, whether to allocate the tax
consequences of its alimony award as a matter of equity. Finally,
we conclude that the court did not err in declining to award
Heidi partial attorney fees and costs.
¶91 Accordingly, we remand the case to the trial court for
further proceedings consistent with our decision.
20140946-CA 46 2017 UT App 150