The case law method is one of the primary teaching methods used by law schools in America. Some cases, because of their unique fact patterns and procedural progression, are more instructive than others. A recent Utah Court of Appeals case, Xu v. Zhao, 2018 UT App. 189, is very helpful in understanding the workings of an alimony award in the state of Utah.

Xu (Husband) and Zhao (Wife) were married in China in 1992 but eventually relocated to Utah in order for Xu to pursue higher education opportunities. During the marriage Xu obtained a PhD in physics.

In the last few years before the parties separated, Xu worked as a translator and a Chinese language customer service representative. He also worked a brief stint as a hotel manager.

Prior to their separation in 2009, the parties lived in a home with a mortgage payment of just over $1,800 per month. Xu filed for divorce in 2012.

As required by the Utah Rules of Civil Procedure, Rule 26.1, the parties exchanged financial declarations shortly after the petition was filed.

The parties also filed their financial declarations with the court because Zhao made an alimony claim.

In his financial declaration, Xu claimed that he earned $6,080 per month and had monthly expenses of $5,987.31, including the $1,800 mortgage payment.

In her financial declaration, Zhao claimed that she had no income and that her family was helping her meet her current monthly expenses of $3,383.57. She alleged a current housing expense of $650.00. Zhao attached documentation for a few, but not all, of her expenses.

Xu sent Zhao a discovery request, asking her to produce copies of bank statements and tax returns. Zhao refused to comply with the discovery request. Xu sought a court order compelling Zhao to comply with his discovery request. The court granted his motion and ordered Zhao to comply. Still, Zhao refused to comply with the court order.

Xu then sought sanctions against Xu for her Failure to obey the court’s order that she provide the requested bank statements and tax returns. The court granted Xu’s request and, as a discovery sanction, barred Zhao from introducing evidence at trial in contradiction of Xu’s evidence of her income.

A trial was held in 2015. At the trial, Xu revealed for the first time that he was unemployed. He testified that he had recently been fired from his job and that his sole source of income was unemployment benefits. He attempted to introduce a new financial declaration, which he had not previously disclosed to Zhao or the court.

During closing arguments, the trial court asked Xu’s attorney how it should deal with Xu’s income. The attorney replied that, based on Xu’s employment history, he had the capacity to earn between $60,000 and $79,000 per year. Unsurprisingly, he urges the court to set his client’s income at $60,000.

Xu presented evidence that, prior to the parties’ separation, Zhao had earned $2,150 per month from her primary job and, $1,500 at a secondary part-time job. Pursuant to the court’s discovery sanction, Zhao was not allowed to present any evidence to rebut this.

After taking the matter under advisement for a few weeks, the court made its findings of fact and conclusions of law. It found that Xu’s earning capacity was between $60,000 and $89,000 based on his employment history. It found that he was well educated and resourceful, and imputed income to him in the amount of $76,000 per year, or $6,333 per month.

The Court found that Xu’s alleged expenses were overstated. In particular, it found that his housing expense of $1,800 per month was unrealistically high given the parties’ post-divorce finances. Because it found the parties could no longer afford their pre-marital standard of living, the court ordered that the marital house should be sold.

The court found that Zhao’s income was $2,150 per month based on one 40 hour per week full-time job. It refused to impute income to Zhao for a secondary, part-time job, reasoning that it had not imputed income to Xu for a secondary, part-time job in assessing his ability to pay alimony, and that what was good for the goose was good for the gander.

The court determined that Zhao’s $650 per month housing expense was acceptable because the parties simply did not have enough resources to maintain their standard of living post divorce. It further found that her reasonable monthly expenses were $3,033.57, which left her with a monthly shortfall of $883.57.

Ultimately, the court ordered Xu to pay Zhao alimony in the amount of $1,600 per month for four years, and $1,200 per month for another thirteen years.

Xu filed a post-trial motion asking the court to amend its findings of fact and, based on the amended findings, recalculate the alimony award. He argued that Zhao’s unmet need of $883.57 per month was the ceiling for any alimony award. He cited the case of Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) for the principle that “a spouse’s demonstrated need must … constitute the maximum permissible alimony award.”

Xu further argued that Zhao had.not presented enough proof in support of her claimed housing expense of $650 per month. He argued that the court should have imputed Zhao income from a secondary, part-time job. Lastly, he argued that the court had erred in imputing income to him of $76,000 per year without making a finding on whether or not he was voluntarily underemployed and had not made any finding that the job market would allow him to make that much money.

Zhao responded that the court’s alimony award was adequately supported by its findings and that her expenses were actually much higher than the court had previously found. She stated that her housing expense of $650 per month was based on her expenses at the time of trial, rather than at the time of separation. She argued that the court should impute the exact same expenses to both her and Xu, including an $1,800 per month housing expense. She argued that her monthly expenses should be raised to $3,865.80, to match Zhao’s.

Following a hearing for oral arguments the court amended its findings of fact and conclusions of law. The court stuck to its guns on Xu’s income of $76,000 but explained its decision in more detail. However, the court changed its conclusion about Zhao’s income, ruling that she had income of $2,150 from one primary, full-time job and income of $1,500 from a secondary, part-time job.

The Court then raised each parties’ housing expense to $1,800 per month. Based on the new housing expense, the Court found that Zhao’s monthly expenses were $4,183 and that she had a monthly shortfall of $533.37. The court further found that Xu had the ability to meet this shortfall, and ordered him to pay alimony of $534 per month

Xu appealed and Zhao cross-appealed.

Xu claimed that the trial court erred in imputing to Zhao a $1,800 per month housing expense. He also claimed that the court erred in imputing income to him of $76,000 per year.

Zhao contended that the court erred when, in reliance on its discovery sanction, it imputed income to her of $1,500 for a second job. Zhao also claimed that the court erred in not imputing the exact same amount of expenses to both of the parties.

Because courts have broad discretion in setting an alimony award, so long as they follow the law and make adequate findings of fact, all of these claims were subject to review under an “abuse of discretion” standard. This means the appellate court would uphold the trial court’s decision unless it was convinced the trial court had abused its discretion.

Xu first claimed that the court made a procedural error in raising Zhao’s housing expense to $1,800 after post trial motions. He argued that the court did this sua sponte, without being asked by either party to do so. He argued that Zhao had made no motion to raise her housing expense and that, therefore, he had not been able to respond to such a motion.

But the court noted that this was not entirely correct. It was Xu himself who had raised a motion challenging the court’s initial decision setting Zhao’s housing expense at $650. Xu had responded with a suggestion that the court set each party’s housing expense at $1,800 per month. Thus, Xu failed to persuade the court that the court had raised the issue sua sponte.

Substantively, Xu claimed that the court erred in assessing the parties’ housing expense as of their date of separation, while assessing many of their other expenses as of the date of trial.

But the Court noted that a trial court has discretion to assess some expenses as of the date of trial and some expenses as of the date of separation. As a general rule the court should look to the parties’ standard of living at the time of their separation in fashioning an alimony award. But the court has discretion to assess expenses at the time of trial. In addition, the court should not necessarily focus on actual expenses alone during separation because expense levels during separation may of necessity be lower during separation as the parties economize during a divorce. Courts are encouraged to consider the standard of living that prevailed during the marriage as well as the expenses during separation.

Xu’s next substantive argument against the $1,800 housing expense assessed to Xu was that Xu did not present any evidence in support of an $1,800 housing expense. Rather, in her financial declaration, Xu had claimed a $650 housing expense. Thus, Xu’s argument was that there was no evidentiary basis to assess Zhao a housing expense of $1,800 per month.

But the court was well within its discretion to determine that Zhao needed $1,800 per month for housing in order to maintain the standard of living that prevailed during the marriage. This was the amount of the parties’ mortgage payment on the marital home at the time they separated.

Xu’s third substantive argument against assigning Zhao an $1,800 housing expense was that such an expense was incurred for the entire family during the marriage and Zhao would not need such a large housing expense now that she was living alone.

But Xu himself had claimed an $1,800 housing expense based on his continued residence in the marital home. A court has discretion to assess equal housing expenses to the parties where there is no evidence that one party needed a higher housing expense than the other. After all, Xu was residing alone in the marital residence and there was no apparent reason why he had need of more expensive housing than Zhao. In other words, what is good for the goose is good for the gander, and vice versa.

The Court noted that the purpose of alimony is to get the parties as close as possible to the standard of living enjoyed during the marriage and to equalize the parties standard of living. Given these factors, the trial court’s assignment of an equal housing expense to each party was supported by substantial evidence and was in harmony with the purposes of alimony.

Xu next contended that the court erred in imputing income to him in the amount of $76,000 since he was unemployed at the time of trial. But his counsel had invited the court to impute income to him within a range of $60,000 to $79,000, and had asked the court to set his income at the lower $60,000 figure. In determining a paying spouse’s ability to provide for a recipient spouse’s unmet needs, the Court needs to look at a long list of factors in order to determine the employment potential and probable earnings of a spouse, including work history and historical earnings. This is especially so when a spouse has experienced a temporary decrease in wages during a divorce.

The trial court appropriately found that Xu had a long history of earning between $60,000 and $89,000 per year and had proven himself quite resourceful and able to acquire new employment in his field. These findings were sufficient to support the decision to impute income in the amount of $79,000 to Xu.

Zhao contended that the court erred in imputing income to her for a secondary part-time job. In particular, she objected to the court’s drawing any long-term conclusions from an eight-month period of time during the marriage in which she held two jobs. The Court noted that, under ordinary circumstances it might be persuaded by Zhao’s argument. However, Zhao failed to take into account the trial court’s discovery sanction for her willful failure to provide Xu with copies of bank statements and tax returns. As a sanction, the court had precluded Zhao from rebutting any evidence Xu might produce regarding her income.

In the instant case, Xu had presented evidence that Zhao had worked two jobs at the time of separation and asked the court to infer that she continued to do so. The court did not abuse its discretion in making this inference because of Zhao’s discovery misconduct.

Lastly, Zhao argued that the court abused its discretion when it equalized the parties housing expenses, but failed to equalize all of their other expenses. But court’s are discouraged from simply attempting to equalize the parties’ incomes without going through the traditional needs analysis. This is because, regardless of a payor spouse’s ability to pay, alimony must be limited by the recipient spouse’s demonstrated need.

In the instant case, the parties’ basic expenses differed. Their medical expenses, insurance, utilities and other expenses differed. The mere fact that Zhao spent less on medical expenses than Xu did not prove that she needed more in medical expenses in order to enjoy the same standard of living. The Court noted that, while large expenses such as mortgage payments tend to be borne equally by the parties, some expenses, such as medical expenses, may differ from person to person.

In sum, the Court held that the trial court did not abuse its discretion in finding:

a) That the parties each required $1,800 per month in housing expenses;
b) That Xu had the ability to earn $76,000 per year and that this amount of income should be imputed to him;
c) That Zhao’s income should be based on one full-time job and a secondary, part-time job; and
d) That the parties did not have exactly equal expenses in every line item category.

The trial court’s decision was affirmed.

See Xu v. Zhao, 2018 UT App 189.

Some things that I took away from the case as practice pointers and advice to clients are:

1) Be transparent. Don’t play hide the ball.
2) Comply with court orders.
3) Provide detailed documentation for all items of expenses.
4) Be specific in proving the amount of a need for alimony. Do a detailed, needs-based analysis and do not just assume the court will equalize the parties’ incomes.
5) Remember that not all line items of expenses will be the same for both parties. While some large expenses, such as a mortgage payment, may be equally borne by both parties, other expenses may vary from person to person.
6) Remember that the court may impute income based on a host of factors, including historical earning capacity. This is especially so where a party has a temporary decrease in wages or earnings.
7) Always keep the purposes of alimony in mind when preparing your case. These include maintaining the parties as much as possible in the standard of living they enjoyed during the marriage, equalizing the parties’ standards of living, and/or preventing the recipient spouse from becoming a public charge.
8) Remember that the upper limit of any alimony award is the recipient spouse’s demonstrated need.
9) Give the court plenty of evidence to make detailed findings of fact in your favor. The more details you provide to flesh out your arguments, the less of a guessing game it will be for the court.
10) Timely provide and supplement initial and pre-trial disclosures.
11) Make every attempt to be fully employed at the time of trial.
12) Always keep the fundamentals of proving an alimony case in mind. In this respect, remember the Jones factor of: the recipient spouse’s needs, the recipient spouse’s ability to contribute to his or her own needs, the payor spouse’s ability to contribute to the recipient spouse’s unmet needs, and the length of the marriage.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted