Knowles v. Knowles , 2022 UT App 47 ( 2022 )

2022 UT App 47THE UTAH COURT OF APPEALS
DUANE CROFT KNOWLES,
Appellant,
v.
CELIA FERN KNOWLES,
Appellee.
Opinion
No. 20200032
Filed April 7, 2022
Second District Court, Farmington Department
The Honorable David R. Hamilton
No. 174700123
Julie J. Nelson and Alexandra Mareschal, Attorneys
for Appellant
Emily Adams and Sara Pfrommer, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 In 2016, Duane Croft Knowles and Celia Fern Knowles
separated after nearly thirty years of marriage. During their
separation, the district court awarded Celia1 temporary alimony
and, after a bench trial, entered a final alimony award. Duane
now appeals those awards, arguing the court abused its
discretion in (1) declining to award him credit for purported
overages he paid in temporary alimony, (2) calculating the
1. Because the parties share the same last name, we refer to each
by their first name, with no disrespect intended by the apparent
informality.
Knowles v. Knowles
parties’ expenses in determining the final alimony award, and
(3) selecting the date to value the retirement accounts. We affirm
in part and reverse in part and remand.
BACKGROUND2
¶2 Duane and Celia were married in December 1989. They
remained married for twenty-nine years, during which time they
had six children. For the duration of the marriage, Duane
worked as an optometrist and supported the family financially.
¶3 In 2016, Duane and Celia separated. At that time, only
two of the children were minors.3 Upon the parties’ separation,
Celia remained in the marital home, which was paid off. Each
month Duane used his income to pay the family’s bills and any
remaining funds were then divided between the parties; in the
initial months following their separation, Celia received $200
more per month than Duane, after which the excess was split
50/50. After several months of this informal arrangement, both
parties filed motions for temporary orders, supported by
financial declarations.
2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the district court’s findings, and therefore
recite the facts consistent with that standard and present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Burggraaf v. Burggraaf, 2019 UT App 195, n.2,
455 P.3d 1071 (quotation simplified).
3. At the time of the separation, Celia was awarded primary
physical custody of the two minor children. In the final divorce
decree, Duane and Celia were “awarded joint legal and joint
physical custody” of the minor children. Neither custody nor
child support is at issue in this appeal.
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¶4 In Celia’s financial declaration, she reported a nominal
monthly income of $103.52 from her massage therapist side
business but requested the court impute the minimum wage for
full-time employment to her in the amount of $1,257 per month.
Celia also declared that her monthly financial needs were
$8,476.91. This total included, among other things, orthodontic
expenses for one of the parties’ minor children and a monthly
donation for tithing to Celia’s church.
¶5 In Duane’s financial declaration, he reported a net
monthly income of $9,671.08 from his job as an optometrist.
Duane calculated his monthly expenses as $5,054.70 and
included in those expenses a line-item for a tithing donation to
his church.
¶6 The competing motions for temporary orders were
reviewed before a commissioner in September 2017. Duane was
ordered to pay Celia $3,797 in alimony each month, beginning in
July 2017. The commissioner noted that “the issue of retroactive
alimony prior to July 1, 2017,” would be “reserve[d]” and that
Duane “shall receive credit for amounts he has paid [Celia] or on
behalf of [Celia] during this time.” In calculating temporary
alimony, the commissioner adjusted the stated monthly
expenses for both parties, including eliminating the claimed
monthly expense for tithing. The commissioner did not exclude,
however, Celia’s claimed orthodontic expenses for the parties’
minor children.
¶7 Duane objected to the commissioner’s alimony
recommendations, arguing that the commissioner had
improperly calculated the parties’ needs by failing to “equalize
the parties[’] standards of living” and “by failing to consider the
parties[’] historical standard of living.” In addition, he argued
that the temporary award should cover only the actual expenses
of the parties and not “projected expenses” such as possible
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orthodontics for the parties’ ten-year-old child who did not yet
have braces.
¶8 Following briefing and argument on Duane’s motion, the
district court sustained the commissioner’s recommendations as
to the parties’ temporary expenses and incomes. In particular,
the court noted that including the orthodontic expenses in
calculating Celia’s needs “was not erroneous” because “[e]ven if
orthodonti[cs] is not presently involved, it could occur in the
immediate future.” However, the court agreed with Duane that
some of Celia’s expenses were inflated and that alimony should
be adjusted accordingly. The court then reduced the temporary
alimony award from $3,797 to $2,809, with payments set to begin
on July 1, 2017, the same day set by the commissioner in his
initial order.4
¶9 In 2019, two years after Duane filed for divorce, the
parties went to trial. During the course of the two-day bench
trial on financial issues, both parties testified, along with their
respective experts.
¶10 Duane first challenged the district court’s award of
temporary alimony, arguing that Celia’s financial declarations
were not adequately supported and that she had failed to prove
the marital standard of living and her actual needs. In support of
this argument, Duane called as an expert a forensic accountant to
testify regarding the parties’ marital standard of living. The
expert first testified that prior to the parties’ separation in 2016,
the monthly marital expenses for both parties together were
$9,338, or $4,669 each. He then explained that Celia had
requested $8,476.91 in her financial declaration but had been
4. Following this ruling, Duane filed with this court a Petition for
Permission to File an Interlocutory Appeal. The Petition was
denied.
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spending only around $4,755.02 per month. He also opined that,
based on the parties’ historical spending, tithing donations to
their church were part of the marital standard of living.
¶11 In addition to challenging the amount of alimony, Duane
asked the court to credit him $64,000 for what he characterized
as an “overage” he paid in temporary alimony. In essence,
Duane argued that the temporary alimony figure he had paid for
approximately two years had been too high and asked the court
to adjust that figure retroactively and award him the difference
between what he had paid and what he should have paid. He
argued that Celia had “intentionally dissipated the marital estate
by overspending,” “over-inflat[ing] her needs,” and “refusing to
work” despite having “the ability to work full time.”
¶12 Following trial, the district court entered its findings of
fact and conclusions of law. Based on its analysis of the parties’
income and needs, the court awarded Celia $2,770 in permanent
alimony per month moving forward.
¶13 In reaching that amount, the court first analyzed each
party’s income. It calculated Duane’s monthly net income at
$9,368, after averaging the prior four years of his annual income
as stated in his tax returns. The court also imputed a monthly net
income of $1,874 to Celia, finding that “she is voluntarily
underemployed” and “capable of employment.”
¶14 The court then analyzed the needs of each party. It first
declined to “award any donations or tithing for either party.” It
reasoned that the tithing payments were “a religious preference”
and “not a necessary living expense.”
¶15 Next, after examining Celia’s multiple financial
declarations and other relevant evidence, the district court found
that her post-divorce living expenses would be $5,382 per
month. To reach this amount, the court excluded some of Celia’s
claims for expenses, finding the supporting evidence “lacking,
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remote in time[,] and remote in detail.” But the court also added
additional expenses for a future mortgage and for health
insurance, which had not been included in Celia’s financial
declarations.
¶16 Finally, the court examined Duane’s financial declarations
and supporting evidence and determined that his monthly post-
divorce living expenses, excluding child support, would be
$5,833. In so doing, the court excluded only “the expense of
donations,” finding Duane’s other expenses “to be appropriate.”
¶17 After setting the amount of permanent alimony, the
district court addressed both parties’ claims regarding alimony
arrears and overpayments. Without addressing the merits of the
parties’ arguments, the court summarily concluded that both
parties had failed “to provide or to carry the weight of the
evidence in their respective favor” and declined to credit Duane
for any overpayments of temporary alimony.
¶18 With respect to the parties’ retirement accounts, the court
awarded each party “one-half of the value of the marital portion
of the retirement accounts, . . . with a valuation date of August 2,
2019,” the date on which the court announced its oral ruling.
¶19 Following the district court’s oral ruling, Duane filed a
document requesting further clarification on a number of issues,
including, as relevant here, his taxpayer filing status and the
valuation date of the retirement accounts. As to his taxpayer
filing status, Duane noted that his “ability to pay should be
reduced by $224/month as his taxable income will be higher”
because of the change in his filing status following the divorce.
As to the valuation date of the retirement accounts, Duane noted
that the division date “should be the date of separation” and not
the date of divorce.
¶20 In response to Duane’s request, the district court issued
an order rejecting both arguments. First, it declined to change
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Duane’s taxpayer filing status, reasoning that Duane had not
provided sufficient evidence to rebut its previous ruling. Second,
it declined to change the valuation date of the retirement
accounts. It acknowledged that “typically the date of division of
retirement accounts is the date of divorce” but, due to the
“totality of the circumstances” presented in this case, determined
to use August 2, 2019 as the “date of division,” noting that the
parties had not made “sufficient argument about a different
division date being used.”
ISSUES AND STANDARDS OF REVIEW
¶21 Duane now appeals and raises three issues for our
consideration. First, he contends that the district court erred “by
failing to correct for overage paid in temporary alimony.”
“District 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.” Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 26,
455 P.3d 1071 (quotation simplified).
¶22 Second, Duane contends that the district court erred in
calculating the amount of the permanent alimony award.
Specifically, he argues that the court miscalculated the parties’
expenses by failing to include the tithing contribution each paid
to their church, by “including an ongoing expense for
orthodonti[cs],” and by “miscalculating [Duane’s] tax
obligation.” We review a district court’s alimony determination
for an abuse of discretion. See id. In determining alimony, a court
exceeds its discretion if its alimony award “lacks a reasonable
basis.” Redden v. Redden, 2020 UT App 22, ¶ 15, 461 P.3d 314.
¶23 Third, Duane contends that the district court erred by
“setting an arbitrary valuation date for the retirement accounts
rather than the date of separation.” “The [district] court in a
divorce action is permitted considerable discretion in adjusting
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the financial and property interests of the parties, and its actions
are entitled to a presumption of validity.” Rayner v. Rayner, 2013
UT App 269, ¶ 4, 316 P.3d 455 (quotation simplified). “Thus, we
will not disturb a court’s distribution of marital property unless
it is clearly unjust or a clear abuse of discretion.” Goggin v.
Goggin, 2013 UT 16, ¶ 44, 299 P.3d 1079 (quotation simplified).
ANALYSIS
I. Overpayment of Temporary Alimony
¶24 Duane first contends that the district court abused its
discretion by failing to credit him for what he considers to have
been excess payments made to Celia pursuant to the court’s
temporary alimony order. Duane argued below, and argues now
on appeal, that the temporary alimony award was erroneous
because Celia obtained it by submitting inflated and unjustified
need claims that the district court rejected after hearing the
evidence at trial. Specifically, he argues that the temporary
award underestimated the amount of income to be imputed to
Celia, relied on an inflated estimate of Celia’s needs, and
included a triple award for the children’s medical expenses.
¶25 Celia first responds that Duane failed to preserve this
issue below, with the exception of his claim regarding the triple
award of medical expenses. She then asserts that Duane’s
argument fails on the merits because his comparison of the
temporary and final awards fails to account for changes in her
circumstances during the two-year period between separation
and trial. We turn first to the preservation argument and then
address the merits.
A. Preservation
¶26 Celia asserts that Duane’s overpayment argument
regarding her expenses and income is unpreserved because the
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argument Duane raised in the district court is based on an
“entirely distinct legal theory” from the argument he raises on
appeal. (Quotation simplified.) In the district court, Duane
argued that he paid too much in temporary alimony because
Celia had “dissipated the marital estate by overspending” and
had refused to work. Celia asserts these arguments are distinct
from the argument Duane raises here, which is that the
temporary alimony award was overinflated because of
adjustments to Celia’s alimony award made by the district court
at the time of trial. We disagree with Celia’s characterization of
the arguments and conclude that the issue was properly
preserved.
¶27 “Our preservation requirement is well-settled: we require
parties to have raised and argued before the district court the
issue that they raise and argue before us on appeal, and if a
party does not, it has failed to preserve the issue.” True v. Utah
Dep’t of Transportation, 2018 UT App 86, ¶ 23, 427 P.3d 338(quotation simplified). “An issue is preserved for appeal when it
has been presented to the district court in such a way that the
court has an opportunity to rule on it.” State v. Rogers, 2020 UT
App 78, ¶ 20, 467 P.3d 880 (quotation simplified). A party
asserting error on appeal must have raised the issue before the
district court “specifically, in a timely manner, and with support
by evidence and relevant legal authority.” True, 2018 UT App 86,
¶ 24. “New arguments, when brought under a properly
preserved issue or theory,” may be properly considered on
appeal. Id. ¶ 32 (quotation simplified). “Such arguments include
citing new authority or cases supporting an issue that was
properly preserved.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416
P.3d 443.
¶28 The arguments Duane raised repeatedly in the district
court are, in fact, based on the same facts and legal theories as
those he raises here. In the proceedings on temporary orders,
Celia filed a financial declaration stating that her monthly need
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was $8,476.91, which was only $1,000 short of Duane’s entire net
income. At that time, Celia was working a de minimis amount
and had no expenses for health insurance or housing since she
was residing in the paid-off marital home and receiving health
insurance through Duane’s employment. The commissioner
reduced some of Celia’s claimed expenses and imputed income
to her based on full-time work at a minimum wage income and
then recommended that Duane pay temporary alimony in the
amount of $3,797 per month.
¶29 Duane objected to the commissioner’s recommendation,
arguing that Celia’s requested amount far exceeded the marital
standard of living. Duane requested that the district court
immediately correct the inflated temporary alimony because he
was concerned that the court would decline to correct it
retroactively. The court agreed that some of Celia’s expenses
were inflated and reduced the temporary award to $2,809.
Dissatisfied with the court’s resolution of the issue, Duane filed a
petition for interlocutory appeal with this court, again making
the argument that the temporary alimony award was excessive
because Celia’s claimed expenses were excessive. His petition
was denied.
¶30 Having been only partially successful in urging the
district court to reduce the temporary award before trial, Duane
again challenged the temporary award at trial. Indeed, Duane
maintains that much of his motivation to take the case to trial—
rather than to settle out of court—was to have the temporary
alimony award corrected. Duane filed a trial brief in which he
argued that he should be credited for any overage he had paid in
temporary alimony and that temporary alimony should be
“reduced retroactively as it was incorrectly applied.”
Specifically, Duane argued that Celia had “over-inflated her
needs” and “misled the [c]ourt with her financial declaration.”
After the district court announced its preliminary oral ruling,
Duane argued in post-trial briefing that the court should award
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him a judgment for “alimony that was over-paid during the
temporary orders.” And at oral argument on the post-trial
issues, Duane again argued that “[t]he temporary order created a
substantial inequity between the parties” and that he should be
given a judgment for the amounts he overpaid. The court noted
Duane’s argument but declined to analyze the merits of his
arguments or credit him for any overpayment.
¶31 In short, Duane repeatedly argued below that the
temporary alimony award was wrong for two broad reasons.
First, he claimed that it was wrong due to Celia’s allegedly
overstated expenses. Second, he claimed that it was wrong due
to Celia’s allegedly understated earning capacity. Duane sought
credit for these overages based on his argument that the
evidence presented at trial failed to support the temporary
award. This is the same argument that Duane advances here.
The fact that Duane now illustrates the issue by pointing to the
discrepancies between the temporary alimony order and the
final alimony award (and noting the adjustments made to the
final award to account for Celia’s increased expenses for housing
and health insurance) does not change the essence of Duane’s
argument. We therefore conclude that Duane adequately
preserved the issue for our consideration.
B. Temporary Awards
¶32 Utah Code section 30-3-3(3) authorizes an award of
temporary alimony “to provide money, during the pendency of
the action, for the separate support and maintenance of the other
party and of any children in the custody of the other party.”
Utah Code Ann. § 30-3-3(3) (LexisNexis Supp. 2021). Although
orders providing for temporary support are operative during the
pendency of the divorce proceeding, they are not final orders
from which an appeal of right may be taken. Rather, as
interlocutory orders, they are subject to continuing review and
modification by the district court until the issuance of a final
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judgment. See IHC Health Services, Inc. v. D & K Mgmt., Inc., 2008
UT 73, ¶ 27, 196 P.3d 588 (recognizing the broad discretion of
district courts to reconsider and modify interlocutory rulings
before final judgment).
¶33 Although district courts have discretion in fashioning
temporary orders, temporary alimony is subject to the same
requirements as a regular alimony award. See Dahl v. Dahl, 2015
UT 79, ¶¶ 85–98, 459 P.3d 276 (describing factors applied to
temporary alimony and concluding the district court did not
abuse its discretion in denying temporary alimony when wife
failed to provide documentation of her needs). As is the case
with awards of permanent alimony, temporary alimony awards
must “follow[] logically from, and [be] supported by, the
evidence.” Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 13, 80
P.3d 153 (quotation simplified).
¶34 Because of their nature, however, temporary awards are
often based on limited evidence. Typically recommended by a
domestic relations commissioner after a brief proffer hearing
based largely on the financial declarations submitted by the
parties, see Utah R. Jud. Admin. 6-401(2)(H), such temporary
orders may result in awards that are not supported by the more
substantial evidence presented at a later trial. For this reason,
district courts have the authority to revisit temporary orders
and, if warranted, retroactively modify them in the final divorce
decree. See Utah Code Ann. § 30-3-3(4); id. § 30-3-5(4); id. § 78B-
12-112(4) (2018); Miner v. Miner, 2021 UT App 77, ¶ 101, 496 P.3d
242; McPherson v. McPherson, 2011 UT App 382, ¶¶ 12, 17, 23, 265
P.3d 839.
¶35 This court’s opinion in McPherson illustrates this point
and is instructive here. There, husband appealed the district
court’s denial of his request for a retroactive modification of his
temporary alimony obligation. McPherson, 2011 UT App 382,
¶ 10. The court had based its initial temporary award on the
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recommendation of the domestic relations commissioner who, in
turn, had based it on husband’s salary at the time of the initial
support hearing. Id. ¶¶ 3, 5. When the court entered the
temporary award, it was unaware that husband had since been
fired from his job. Id. ¶ 5. Husband thereafter moved to amend
the temporary order to recalculate his child support and alimony
obligations in accordance with his then-decreased salary. Id. ¶ 7.
The court denied the motion, reasoning that husband’s
decreased salary was likely the result of his voluntary
underemployment. Id. Following a bench trial, however, the
court reversed course, finding that husband was not voluntarily
underemployed. Id. ¶ 19. It therefore reduced husband’s future
support obligations. Id. But it nevertheless denied husband’s
request for a retroactive modification of his temporary support
obligations, reasoning there was “no basis in law, fact, or equity
to retroactively reduce the amounts.” Id. (quotation simplified).
¶36 On appeal, this court reversed and remanded with
instructions for the district court to modify the temporary
alimony award retroactively. Id. ¶ 24. While recognizing the
considerable discretion district courts possess in determining
alimony, we emphasized that such awards must be supported
by an explanation based on the evidence. Id. ¶ 23. Because the
temporary alimony award was based on the erroneous
assumption (later rejected by the district court) that husband was
voluntarily underemployed, there was no justification for the
higher award. Id. ¶ 21. This court held that the district court
abused its discretion by failing to retroactively modify husband’s
temporary support obligations, reasoning that “[e]ven if the
commissioner’s recommendations seemed well founded at the
time of the hearings, once the premise of that decision was
proved inaccurate, there was no reasoned basis to impose
temporary support obligations that were mathematically
impossible for [h]usband to pay.” Id. ¶ 23.
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¶37 Like the husband in McPherson, Duane argues the district
court abused its discretion when it failed to credit him for
temporary alimony payments that were higher than the amount
the court determined was appropriate after hearing the evidence
at trial. We therefore consider whether the district court’s refusal
to modify the temporary alimony award was supported by its
factual findings and rulings at trial.
¶38 Duane identifies $62,627 in alleged discrepancies between
the district court’s award of permanent alimony based on the
trial evidence and its award of temporary alimony based on the
proceedings before the commissioner. These consist of
discrepancies between (1) Celia’s imputed income ($16,255 in
overage); (2) Celia’s needs ($38,250 in overage); and (3) the
amount awarded for medical expenses ($8,152 in overage).
While Celia argues that these discrepancies are readily
explainable, the district court offered no such explanation.
Despite Duane’s request for reimbursement of what he argued
was excessive temporary alimony, the court summarily declined
to reconcile the differences, stating only that “neither party
submitted sufficient evidence for arrears or overages.” But the
district court’s summary refusal to consider the merits of the
issue on the basis of insufficient evidence does not suffice,
because the evidence supporting Duane’s request for
reimbursement of asserted overages was the very same evidence
that supported the court’s award of permanent alimony.5
Indeed, the court’s explanation for its refusal to address the
discrepancies between the temporary and final award is no more
5. Duane offered evidence at trial supporting the permanent
alimony award. Because he proved his case at trial and identified
relevant discrepancies between the temporary and final alimony
awards, there was nothing else he needed to do (or could have
done) to support his request for reconsideration of the
temporary award.
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sufficient than the McPherson court’s conclusory statement that
there was “no basis in law, fact, or equity to retroactively reduce
the amounts.” See 2011 UT App 382, ¶ 19 (quotation simplified).
We therefore turn to the alleged discrepancies Duane identifies.
1. Celia’s Imputed Income
¶39 An alimony award must account for the ability of the
recipient spouse to support themselves. See Utah Code Ann.
§ 30-3-5(9)(a)(ii) (LexisNexis Supp. 2021). At the temporary
stage, the court imputed $1,225 in net income to Celia. But at
trial, the court agreed with Duane and found that Celia was
“voluntarily underemployed” and “capable of employment.”
Based on the testimony presented at trial, the court imputed to
Celia $1,874 per month in net income, which represented an
increase of $649 per month over the amount imputed in the
temporary award. And the court made no finding suggesting
that Celia could not have earned that amount during the
pendency of the proceedings, or otherwise justifying the
discrepancy between the temporary order and its findings at
trial. The court should have considered whether Celia had the
same earning capacity during the separation.
2. Celia’s Needs
¶40 An alimony award also must account for the financial
condition and needs of the recipient spouse. See id. § 30-3-
5(9)(a)(i). At the temporary stage, when Celia was residing in the
paid-off marital home and receiving health insurance through
Duane’s employment, the court found that Celia had monthly
expenses (needs) of $5,370. After imputing a monthly net
minimum wage of $1,225 to Celia and giving Duane credit for
$1,336 in monthly child support payments, the court entered a
temporary alimony award of $2,809 per month.
¶41 At trial, however, the court found that evidentiary
support for Celia’s expenses was “lacking, remote in time,”
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“remote in detail,” and “artificial.” It therefore disallowed many
of her claimed expenses. It then added a monthly mortgage
expense of $1,015 to account for the fact that Celia would be
required to refinance the marital home to cash out Duane’s
equity. It also added a monthly health insurance expense of $503
because Celia would no longer be eligible for insurance through
Duane’s employer after the divorce. Following these
adjustments, the court made a finding that Celia’s monthly post-
divorce expenses were $5,382. Excluding the post-divorce
adjustments for housing and health insurance, the permanent
award based on the trial evidence was $1,530 per month less
than the temporary award or a total of $38,250 over the twenty-
five months that Duane paid support pursuant to the temporary
order. Duane argues that the district court erred in failing to
award him this overage.
¶42 Celia argues that this court should reject Duane’s
argument because he failed to marshal the evidence supporting
the district court’s permanent award. She argues that Duane
disregarded the evidence supporting her need for support after
“the collapse of her 27-year marriage where she was largely a
stay-at-home parent.” But marshalling is not required, because
Duane has not raised a sufficiency argument or challenged the
district court’s factual findings. And Celia has not explained
why the length of the marriage or her status as a stay-at-home
parent justifies the discrepancies in the amount of the temporary
and final awards, since these issues are properly considered in
determining the length of the alimony award and the level of
income to impute to the receiving spouse. See id. § 30-3-
5(9)(a)(ii), (iv).
¶43 Celia next argues that Duane is committing a logical
fallacy of false equivalence by comparing the temporary and
final alimony awards because there are significant differences
between the two kinds of awards. She posits that a spouse’s
needs, ability to produce income, and support of minor children
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may change from the time a court orders temporary alimony to
the time of the final award and suggests that this is the
explanation for the discrepancies here. She asserts that she was
able to earn more income as time went on because her children
were growing and their medical needs had decreased. She
therefore suggests the district court determined she could earn
more after the divorce was final than during its pendency. A
court could conceivably find that a party is able to earn more at
the time of trial than at the time of temporary orders. But the
court made no such finding here, and we note that at no point
during the temporary proceedings did Celia argue that the
children’s medical needs prevented her from working. Indeed,
the commissioner imputed her minimum wage for full-time
work, and the district court found that Celia was voluntarily
underemployed and flatly rejected her argument that she could
not work because of the children’s medical needs.
¶44 Finally, Celia argues that Duane’s line-by-line comparison
of the temporary and permanent awards is misleading because
an alimony award is based on a more generalized determination
of the amount necessary for both parties to maintain the
standard of living that they enjoyed prior to the divorce. Because
the temporary award ($2,809) was only $39 higher than the final
award ($2,770), Celia maintains that the court’s failure to make
an adjustment could not have been an abuse of discretion. But
this argument ignores the adjustment made to the temporary
award to account for mortgage and health insurance expenses.6
And more importantly, it is at odds with the district court’s
express finding that evidentiary support for Celia’s claimed
6. In fact, by comparing only the final amounts of the parties’
expenses, without accounting for the changes in Celia’s
mortgage and insurance obligations, Celia engages in the same
logical fallacy that she accuses Duane of making—the fallacy of
false equivalence.
20200032 17 2022 UT App 47Knowles v. Knowles
expenses was “lacking, remote in time,” “remote in detail,” and
“artificial.” The court should have considered the merits of
Duane’s arguments regarding these discrepancies to determine
whether a modification of the temporary alimony award was in
order.
3. Medical Expenses
¶45 Duane also argues that the temporary alimony award
erroneously included a triple award of medical expenses. The
temporary orders awarded Celia approximately $400 per month
for medical expenses for the parties’ children, as well as half the
funds in the parties’ health savings account (HSA). In addition,
the temporary orders required that Duane pay for half the
children’s medical costs. Duane reasons that Celia should not
have been awarded the $400 per month for medical expenses
and half of the HSA account, because he was already required to
pay for half of the children’s medical costs. And he argues this
inequity was exacerbated at trial when the court awarded Celia
an additional lump sum for orthodontic expenses and
miscellaneous out-of-pocket medical expenses. Duane seeks a
credit in the total amount of $8,152.
¶46 Celia disputes Duane’s claim, arguing that Duane has
failed to demonstrate that the money she was awarded for
medical expenses exceeded the actual needs of the family. She
also points to the district court’s finding that she had established
the amount of the medical expenses with receipts and testimony
not refuted by Duane, and that the award was to be paid from
the HSA, not in addition to it.
¶47 Duane responds that Celia is confusing the district court’s
award for medical expense arrearages with the ongoing
expenses included in calculating Celia’s need. He explains the
court included approximately $400 per month in medical
expenses in calculating Celia’s expenses, awarded Celia half the
HSA account, and then duplicatively ordered Duane to pay for
20200032 18 2022 UT App 47Knowles v. Knowles
half the children’s medical expenses during the temporary
orders period. After trial, Celia was awarded $150 per month in
health care expenses and Duane was awarded the entire HSA
amount. As was the case with Duane’s claim to recover overages
associated with Celia’s allegedly inflated expenses and
underemployment, the district court did not engage with
Duane’s arguments that the temporary alimony award was $541
too high, stating only that it “had previously ruled that [Celia] is
entitled to an award of medical expenses” and that it would “not
modify its previous ruling.” There was no legal justification for
the court’s refusal to examine the merits of Duane’s claim.
4. Remand
¶48 Temporary support orders are interlocutory in nature and
therefore subject to continuing modification by the district court
through the date of the final decree. Because they are often based
on proffers that may differ from the actual evidence presented at
trial, such temporary orders may result in awards that are not
supported by the evidence presented at a later trial. For this
reason, district courts have not only the authority, but the
obligation, to revisit temporary orders when requested and, if
warranted, to “true-up” or retroactively modify them to comport
with the evidence.
¶49 While district courts retain broad discretion in fashioning
support orders in divorce proceedings, they are obligated to
analyze a timely claim by a party seeking to true-up a temporary
support order with the evidence received at trial. This true-up
process consists of a two-part exercise. If a true-up is timely
requested, the court should first make factual findings relevant
to the temporary award to determine whether it was supported
by the evidence. If the court finds, after hearing all the evidence
presented at trial, that the temporary order was inappropriate,
then the court should proceed to the second step: determining
whether a true-up is warranted in the case at hand. In many
20200032 19 2022 UT App 47Knowles v. Knowles
cases, a party who has demonstrated that a temporary order was
inappropriate and unsupported by the more comprehensive
evidence presented at trial will be entitled to a retroactive
modification of that order. See McPherson v. McPherson, 2011 UT
App 382, ¶¶ 21–24, 265 P.3d 839. But in some cases, a court may
find that such retroactive modification is inappropriate or
inequitable, notwithstanding an inaccuracy or error in the
temporary order. In making the determination whether to order
a true-up, a court should identify the considerations bearing on
its decision and should enter careful findings explaining the
basis for that determination.
¶50 Here, Duane was entitled to have the district court engage
on the merits in determining whether he was entitled to a true-
up. As we have discussed, Duane repeatedly asked the district
court to consider his contention that the temporary alimony
award was too high and timely sought an offset based on the
evidence presented at trial. At trial, the court concluded that
Celia should be imputed more income than was included in
calculating the temporary alimony. It also found that Celia’s
claimed expenses were lacking in evidentiary support. But it
failed to analyze, explain, or reconcile the discrepancies between
the numbers used to calculate the temporary and final alimony
orders. It similarly failed to engage in or analyze Duane’s claim
that both the temporary and final alimony orders had duplicated
the award for the children’s medical expenses. This was an
abuse of its discretion. We therefore remand the matter to the
district court to complete the first step of the true-up process by
making appropriate factual findings relevant to the temporary
award to determine whether it was supported by the evidence. If
the court finds the temporary order was overinflated, it must
then determine whether a true-up is warranted. And it should
also consider Duane’s claim that both the temporary and final
alimony awards included a triple award of the children’s
medical expenses.
20200032 20 2022 UT App 47Knowles v. Knowles
II. Calculation of the Final Alimony Award
¶51 Duane next contends that the district court erred, in three
ways, in calculating the final alimony award: (1) it did not
consider tithing paid to the parties’ church as consistent with the
marital standard of living, (2) it failed to consider Duane’s post-
divorce tax bracket, and (3) it included orthodontics as a
permanent expense. We address each argument in turn.
A. Tithing
¶52 Duane argues that the district court miscalculated his
ability to pay alimony by excluding expenses that it deemed
unnecessary. According to Duane, the court analyzed whether
the parties’ claimed expenses were “necessary,” rather than
whether they were consistent with the “marital standard of
living.” (Quotation simplified.) After doing so, it determined
that tithing paid to the parties’ church was not a necessary
obligation and therefore excluded it from Duane’s list of
expenses, thus inaccurately increasing his ability to pay.
¶53 When setting an alimony award, the district court must
consider a number of statutory factors, including “the financial
condition and needs of the recipient spouse,” “the recipient’s
earning capacity or ability to produce income,” and “the ability
of the payor spouse to provide support.” Utah Code Ann. § 30-3-
5(9) (LexisNexis Supp. 2021). “Furthermore, the award should
advance, as much as possible, the purposes of alimony by
assisting the parties in achieving the same standard of living
they enjoyed during the marriage, equalizing the parties’
respective standards of living, and preventing either spouse
from becoming a public charge.” Hansen v. Hansen, 2014 UT App
96, ¶ 6, 325 P.3d 864 (quotation simplified).
¶54 In adhering to these principles, this court has described
the proper process to be followed by courts when awarding
alimony:
20200032 21 2022 UT App 47Knowles v. Knowles
First, the court must assess the needs of the parties,
in light of their marital standard of living. Next, the
court must determine whether the receiving spouse
is able to meet [their] own needs with [their] own
income. If the court finds that the receiving spouse
is unable to meet [their] own needs with [their]
own income, the court must then assess whether
the payor spouse’s income, after meeting [their
own] needs, is sufficient to make up some or all of
the shortfall between the receiving spouse’s needs
and income.
Redden v. Redden, 2020 UT App 22, ¶ 21, 461 P.3d 314 (quotation
simplified). If the court determines after conducting this analysis
“that there are insufficient resources to meet the baseline needs
established by the marital living standard, the court should then
equitably allocate the burden of the shortfall between the
parties.” Rule v. Rule, 2017 UT App 137, ¶ 22, 402 P.3d 153.
¶55 As an initial matter, the court must assess the needs of the
parties not by applying its own sense of which expenses are
truly necessary but, instead, by examining whether their claimed
expenses are consistent with the standard of living the parties
established during the marriage. See id. ¶ 15. This assessment is
fact-sensitive and individualized and must be limited to a
determination of whether the claimed needs are “based on the
parties’ historical standard of living.” See Bakanowski v.
Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153; see also Anderson
v. Anderson, 2018 UT App 19, ¶ 31, 414 P.3d 1069 (defining
“standard of living as a minimum of necessities, comforts, or
luxuries that is essential to maintaining a person in customary or
proper status or circumstances” and “disavow[ing] the notion
that standard of living is determined by actual expenses alone”
(quotation simplified)). Indeed, it is not the job of the district
court to “appl[y] its own sense of what was reasonable under the
20200032 22 2022 UT App 47Knowles v. Knowles
circumstances.” See Dobson v. Dobson, 2012 UT App 373, ¶ 29, 294
P.3d 591.
¶56 In comporting with this principle, this court has upheld
alimony awards that included unique expenses—even expenses
some observers might deem frivolous or unnecessary—where
such expenses were consistent with the marital standard of
living. See, e.g., Miner v. Miner, 2021 UT App 77, ¶¶ 22, 26, 44, 496
P.3d 242 (awarding receiving spouse, among other things, $1,000
per month for “tennis-related expenses,” $625 per month for
“entertainment,” and $5,000 per month for horse care and
maintenance where each expense was a historical marital
expense supported by the evidence). Moreover, courts may infer
that “the parties’ current expenses were based on the marital
standard of living when the majority of the expenses in the
[payor spouse’s] current financial declaration are identical in
amount to those identified as marital expenses in the [receiving
spouse’s] current financial declaration.” Eberhard v. Eberhard,
2019 UT App 114, ¶ 48, 449 P.3d 202 (quotation simplified); see
id. (finding that receiving spouse’s request for $300 per month
for donations and gifts was reasonable “[i]n light of the fact that
the court allocated the same amount for each party to spend on
donations and gifts”). Accordingly, as long as a party’s claimed
expenses are consistent with the marital standard of living, are
based on sufficient factual findings, and advance, as much as
possible, the purposes of alimony, such expenses should be
included in the “needs” calculation.
¶57 The district court did not follow this process here,
however. In setting the alimony award, the court did not analyze
whether the parties’ tithing payments were an expenditure
consistent with the marital standard of living. Instead, the court
declined to “award any donations or tithing for either party”
based on its finding that “tithing is a donation and . . . not a
necessary living expense.” We agree with Duane that in so
doing, the court eliminated the expense based on a subjective
20200032 23 2022 UT App 47Knowles v. Knowles
needs judgment that ignored the requirement that it assess the
expense based on how the parties chose to spend and allocate
their money while married. See Bakanowski, 2003 UT App 357,
¶ 12. And here, the parties presented evidence that their
historical standard of living consistently included paying tithing
to their church.7 By failing to assess whether the parties’
expenditures were consistent with the marital standard of living,
the court abused its discretion. Accordingly, we reverse the
court’s determination on this point and remand for the court to
reassess the tithing expense following the process detailed
above. The court should make a finding as to whether tithing
was included in the parties’ marital standard of living and, if it
was, should account for that expense in calculating alimony.8 If
inclusion of tithing in the calculation results in a shortfall, the
shortfall should be equitably allocated between the parties.
7. Prior to trial, both parties listed tithing to their church as a
monthly expense in their financial declarations. And at trial,
both parties testified that after their separation they continued to
pay tithing. Duane’s accounting expert also testified that, based
on the parties’ historical spending, donations to their church
were part of the parties’ marital standard of living.
8. Our instruction should not be construed as a rigid rule
requiring district courts to factor into every alimony
determination all donations, charitable contributions, or the
“need to fund post-divorce savings, investment, or retirement
accounts.” See Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 16,
80 P.3d 153. The inclusion of such obligations as part of the
needs analysis is discretionary after consideration of all relevant
facts and equitable principles and is appropriate only in
circumstances where such spending was “standard practice
during the marriage and helped to form the couple’s marital
standard of living.” Id.20200032 24 2022 UT App 47Knowles v. Knowles
B. Tax Status
¶58 Duane next argues that the district court miscalculated his
ability to pay because it failed to consider his post-divorce tax
obligation. When awarding alimony, the district court must
consider “the ability of the payor spouse to provide support,”
Utah Code Ann. § 30-3-5(9)(a)(iii) (LexisNexis Supp. 2021),
which “includes consideration of the payor spouse’s tax
obligations,” McPherson v. McPherson, 2011 UT App 382, ¶ 13,
265 P.3d 839.
¶59 The court calculated Duane’s ability to pay by averaging
“the last four years” of his net income as listed in his historical
tax returns. Based on those returns, the court determined that
Duane’s tax obligation would be $24,335.77. In making this
determination, the court failed to consider that during each of
those years the parties’ filing status was married filing jointly,
but that after the divorce Duane’s filing status would—at least
for a time—be single or head of household, which would
increase his tax obligation. Because the court failed to properly
consider Duane’s tax obligation, we reverse and remand for it to
recalculate Duane’s post-divorce tax obligations.
C. Orthodontics
¶60 Duane next argues that the district court “mistakenly
included $112 per month for orthodonti[cs] in the alimony
award.” He contends that this award is improper because (1) no
evidence supported an orthodontics expense “that will endure
for the entire . . . length of the alimony,” (2) he already pre-paid
orthodontics as part of temporary alimony, and (3) he was
already ordered to pay half the children’s medical expenses. As
previously discussed, the temporary alimony award included
$167 per month for orthodontic expenses for the parties’ ten-
year-old child who was not yet wearing braces. Duane sought an
offset for this amount against the final alimony award and
further argued that the alimony award for orthodontic expenses
20200032 25 2022 UT App 47Knowles v. Knowles
was duplicative in light of the court’s separate order that Duane
pay half of the children’s medical expenses. But the district court
declined to address Duane’s arguments. Because we have
remanded these issues for further consideration, we need not
resolve at this juncture Duane’s claims regarding the
orthodontics expenses. Rather, we direct the district court to re-
examine the issue and articulate the factual and legal basis for its
decision.9
III. Valuation Date for the Retirement Accounts
¶61 Finally, Duane argues that the district court abused its
discretion by assigning a valuation date to the parties’ retirement
accounts that was “long after the date of separation, yet not the
date of divorce.”
¶62 “Generally, the marital estate is valued at the time of the
divorce decree or trial.” Jacobsen v. Jacobsen, 2011 UT App 161,
¶ 39, 257 P.3d 478 (quotation simplified). However, “a court has
broad discretion to value the parties’ marital assets at a different
time, such as that of separation, if it determines that the
circumstances so warrant.” Petrzelka v. Goodwin, 2020 UT App 34,
¶ 47, 461 P.3d 1134. “[A]ny deviation from the general rule must
be supported by sufficiently detailed findings of fact that explain
the [district] court’s basis for such deviation.” Rappleye v.
Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993).
¶63 In this case, the parties separated on May 24, 2016. In
2019, the matter proceeded to a multi-day bench trial that took
9. As part of its analysis, the district court should evaluate
whether the expenses for the medical care of the parties’ minor
children are more appropriately addressed as alimony or child
support. See Dobson v. Dobson, 2012 UT App 373, ¶ 11, 294 P.3d
591 (indicating the preference for separating child-related
expenses from recipient-related expenses).
20200032 26 2022 UT App 47Knowles v. Knowles
place between January and April. The court delivered its oral
ruling on August 2, 2019. In that ruling, the court addressed the
division of the parties’ retirement accounts, ordering that they
“be divided . . . 50/50 to each party, effective . . . today, . . .
August the 2nd.” Approximately four months later, on
December 11, 2019, the court reduced its oral ruling to writing.
¶64 Duane contends that the valuation date set by the district
court is “arbitrary” and not supported by sufficient findings. He
maintains that the court should have set the valuation date as the
date of separation. We disagree.
¶65 The valuation date was not arbitrary; it was in fact
consistent with the general rule that “the marital estate is valued
at the time of the divorce decree or trial.” See Jacobsen, 2011 UT
App 161, ¶ 39 (quotation simplified). Here, the court set the
valuation date as August 2, 2019—the same date on which it
delivered its oral ruling at the close of trial. Because the court
followed the general rule of setting the valuation date at the time
of trial, it was not required to articulate any additional findings
of fact explaining its decision. See id.¶66 Moreover, the district court was not presented with
sufficient evidence to justify a departure from the general rule.
After the court’s oral ruling, Duane filed a motion to alter or
amend arguing, among other things, that the date of separation
should be used as the valuation date because Celia did not
contribute to the retirement accounts during the period between
the separation and the date of the divorce and therefore should
not benefit from the increase in its value.
¶67 The court considered Duane’s motion and issued an order
upholding its choice of valuation date. It explained that “due to
the totality of the circumstances a firm date of August 2nd, 2019
is the date of division of the retirement assets. The Court finds
that there was not sufficient argument about a different division
date being used.” Given the lack of argument as to an alternative
20200032 27 2022 UT App 47Knowles v. Knowles
valuation date, the court had no option other than to set the date
as the date “of the divorce decree or trial.” See id. (quotation
simplified). Duane does not persuade us that the district court
acted outside the bounds of its discretion in setting the valuation
date for the retirement accounts.
CONCLUSION
¶68 The district court abused its discretion by failing to
meaningfully address Duane’s argument that based upon the
court’s own post-trial findings, he was entitled to an offset for
overages paid in temporary alimony, including offsets arising
from the amount of Celia’s imputed income and inflated
expenses. The district court similarly erred in failing to consider
Duane’s arguments regarding the award of medical expenses,
including orthodontics. The district court also abused its
discretion when calculating Duane’s ability to pay permanent
alimony by excluding tithing as part of the marital standard of
living and by underestimating Duane’s post-divorce tax
obligation. But we affirm the court’s valuation date for the
parties’ retirement accounts. We therefore reverse the district
court’s alimony award and remand the matter to the court for
reconsideration of the alimony award in accordance with this
opinion.
20200032 28 2022 UT App 47