Utah's Fault Alimony Statute Has Teeth - Melvin
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Utah’s Fault Alimony Statute Has Teeth

by Melvin Cook

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Mr. and Mrs. Gardner were married for twenty-two years. They had four children together. Wife had one child from a prior relationship whom Husband stepped up and treated as his own.

Unfortunately, the lengthy marriage broke up due to wife’s multiple infidelities, with documented affairs occurring in 2007 and 2009, a suspected indiscretion in 2013, and an inappropriate friendship on the verge of blossoming into a full-fledged romantic liaison complete with the usual amenities at the time of the parties’ separation.

After the affairs in 2007 and 2009, Husband had forgiven Wife and encouraged her in seeking redemption through a repentance process with the help of their local ecclesiastical leaders. Husband testified that he was in the marriage for the long haul and considered it an eternal relationship.

Sadly, human weakness again manifested itself several years later when Wife was involved in an unfortunate accident leaving her with severe injuries. At the time of the accident she was found in the company of a friend with whom she admitted she had a indiscreet relationship, which the friend was attempting to take to the next level. This was the final straw that broke the camel’s back, or as husband testified, “the final nail” in the coffin of the moribund marital relationship.

During the marriage, husband had been the primary breadwinner, working his way up the corporate ladder to the point where he was a director of business development for a multinational company and was able to provide the family with an affluent lifestyle. He earned an annual income of around $200,000.

Wife primarily stayed at home and cared for the children during the marriage. However, she also had several marketable skills, including an aptitude for teaching sewing and art classes. She was also a talented artist who had sold her art for fairly high commissions, Including one work that had netted her $5,000. She had also worked part time here and there, earning about $11 or $12 per hour.

Husband had encouraged wife during the marriage to further her education and to obtain more experience in the workforce. However, wife had declined this invitation.

Husband felt compelled to seek a divorce. During the divorce process, the parties admirably settled issues relating to the children, apparently setting aside their differences and placing the best interests of the children first. The property settlement issues were also resolved fairly efficiently.

However, with respect to alimony, the parties found themselves at an intractable impasse and needed to seek the wisdom of a Solomon and therefore requested a trial on that particular issue.

Following the trial the district court made detailed findings of fact and conclusions of law upon which it based its final alimony ruling.

The Court followed the usual statutory and case law alimony factors in determining alimony, namely: 1) what is the recipient spouse’s need for alimony; i.e., what are her monthly expenses?; 2) what is the recipient spouse’s ability to contribute to her own needs, or monthly expenses; and if there is a monthly shortfall 3) what is the paying spouse’s ability to contribute to this monthly shortfall? The Court also looks to the length of the marriage, under the presumption that the longer the marriage, the greater the need for an alimony award because of the recipient spouse’s coming to rely on the paying spouse’s support. Under Utah statutory law, alimony cannot continue longer than the length of the marriage absent some compelling reason.

Utah case law makes clear that alimony should generally be based on the standard of living that prevailed during the marriage at the time of the parties’ separation. The primary goal of alimony is to maintain both spouses at the standard of living enjoyed during the marriage and to prevent the recipient spouse from becoming a public charge.

If there is not enough money to accomplish this goal, then courts are permitted to fashion an alimony award that will achieve income equalization, or setting alimony at an amount that allows each party to have a roughly equal after-tax monthly income. This is sometimes also referred to as “cutting the blanket in half”, or “sharing the misery”, because there simply is not enough combined income to cover each spouse’s needs. The overall idea is to keep the parties at generally the same post-divorce standard of living and thereby put them on roughly the same economic footing in their new lives apart from each other.

These are the general rules. But there is also an important twist. Utah’s alimony statute also allows the courts to consider a party’s fault in making an alimony award, either by adjusting the amount upwards or downwards, or adjusting the term of the alimony upwards or downwards, or some combination of these.

The Court in the instant case relied quite heavily on this fault statute, holding finding that wife’s conduct had contributed substantially to the breakup of the parties’ marriage.

Although wife did not have much recent experience in the workforce, the Court imputed income to her in the amount of $1,300 per month, which is the equivalent of the federal minimum wage.

The Court then declined to award alimony to wife in an amount that would maintain her at the affluent standard of living that she enjoyed due the marriage, opting instead to award her alimony in an amount to cover her reasonable monthly expenses.

For example, whereas wife had requested an allotment for a housing expense of $2,445 per month, the court instead allotted her a housing expense of $1,600 per month. While this would not allow her to continue to reside in a spacious house in the same neighborhood, it would allow her to live in a three bedroom condo in the same neighborhood, or in a reasonably sized home on the west side of the freeway. Whereas wife had requested an allowance for an SUV, the court allowed her enough for a fuel-efficient economy car.

The alimony award gave wife about $5,400 to meet her reasonably necessary expenses. Thus, the court enabled wife to live a comfortable lifestyle, as opposed to the affluent lifestyle to which she had become accustomed.

Rather than having the alimony continue for the length of the marriage, the court set the term of the alimony at ten years. In addition, the court made a stepped-down alimony award, decreasing the amount of alimony over time. The Court reasoned that by doing this, Wife would be incentivized to acquire additional education and work skills with the goal of becoming self-sufficient by the end of the ten-year alimony term.

The court’s overall rationale for reducing the amount and length of the alimony award with respect to the marital standard of living and the length of the marriage was that it would be unfair to the husband to equalize this parties’ post-divorce standards of living and make husband support wife for the entire length of the marriage when wife was primarily at fault for the marital breakup.

Perhaps predictably, wife appealed.

The appeal was initially filed in the Utah Court of Appeals. The Court of Appeals then certified it to the Utah Supreme Court.

In her appeal, Wife made five basic arguments: 1) that the Court abused its discretion in determining that statutorily defined fault substantially contributed to the breakup of the marriage; 2) that the Court misapplied the law in determining the terms of the alimony without achieving the first two primary aims of alimony; 3) that the Court erred in imputing income to her; 4) that the Court plainly erred by failing to consider the effects of taxes on her alimony award; and 5) that the Court erred in failing to award her attorney fees.

With respect to Wife’s first contention, the Utah Supreme Court took the opportunity to clarify the meaning of “substantial contributed” under Utah Code 30-3-35(8)(c), Utah’s alimony fault statute. The term means conduct that was a significant cause of the divorce. Such conduct does not need to be the first, or only cause. Using Merriman-Webster’s collegiate dictionary, as well as Black’s Law Dictionary, the Court pointed out that a substantial cause can be defined as an “important or significant” contributor to a particular harm.

The Restatement Second of Torts defines a “substantial” faction as one which a reasonable person would regard as a “cause”, not necessarily in a philosophical sense, but one which connotes the idea of responsibility.

The Court likened this tort definition to the definition of the alimony fault statute. There may be many events that contribute to a divorce. In fact, Utah’s Supreme Court has recognized in the past that “it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.”

Wife in the instant case pointed to other causes in addition to the affairs, including what she described as mutual verbal abuse and one incident that became intense enough that she hit Husband.

But under the Court’s interpretation, conduct need not be the sole cause of the marital breakup. An important or significant cause falls into the category of conduct that may trigger a Court’s application of section 30-3-5(8).

The Court held that the trial court did not abuse its discretion in finding wife’s conduct a primary cause of the dissolution of the marriage.

The Court also found appropriate the trial court’s reduction of the term of the alimony to less than one-half the length of the marriage.

Utah case law makes clear that a property and alimony award should “minimize animosities” and help the parties move on with their own separate living following a divorce. The typical default alimony rules facilitate this objective. These typical rules provide that courts should, as nearly as possible, maintain both parties at the standard of living they enjoyed during the marriage. This typically helps reduce animosity after a divorce.

Where there are more than enough resources to allow each spouse to continue living at the marital standard of living after a divorce, income equalization is not necessarily an appropriate goal of alimony. In other words, a surplus need not necessarily be divided equally. Income equalization typically comes into play when there is a shortfall; or in other words, there are not enough resources to maintain both parties at the marital standard of living. In such a scenario, courts should attempt to equalize the burden of the shortfall in as fair and equitable a way as possible.

But in some situations application of the default rules does not necessarily lead to an equitable result. For example, in Riley v. Riley an alimony award was upheld which was “well above” wife’s demonstrated need. Husband challenged this award, but it was upheld because of the husband’s fault in causing the marital breakup. More than just economic factors were allowed to be considered in fashioning an equitable result.

Similarly, in the Wilson v. Wilson case, the Court was called upon to consider an alimony term of eight and one third years following a fifteen year marriage. Though the trial court was apprehensive about the wife’s welfare, because of the parties’ “attitudes” it found that rearing the husband to pay permanent alimony would lead to “almost unbearable” bitterness and would not allow the parties to “[re]construct their lives on a happy and useful basis.”

The husband in Wilson appealed the shortened alimony award, arguing that it was not short enough. The Court agreed with husband, noting that, while courts have wide latitude in fashioning alimony awards, the award in the instant case did not further the trial court judge’s goal of creating an alimony award of a modest amount “for a definite period of time with a termination date in sight.” The Court reduced the alimony award by half.

The Riley and Wilson cases show that it can sometimes be appropriate to deviate from the typical alimony guidelines in order to achieve a just, fair and equitable result.

The default alimony rules help courts enable the parties to achieve the goal of moving on with happy and productive post-divorce lives. The fault alimony statute allows the courts some flexibility in departing from those rules in order to achieve the most equitable result. For example, the fault statute makes clear that courts need not attempt to equalize the parties’ standards of living where one spouse’s fault would make this inequitable.

However, Wife contended that the trial court abused its discretion with the reduced alimony award in four ways: 1) by reducing her need by nearly one-third, 2) by shortening the length of the alimony award from the statutory length (here 22 years) to only ten years, 3) by providing for a gradual decrease in the alimony award over ten years, and 4) by imputing to her minimum wage in the amount of $1,300 per month.

But wife was unable to persuade the Court that the alimony award was seriously inequitable so as to manifest a clear abuse of the trial court’s discretion.

The trial court had imputed to wife reasonable monthly expenses of $5,437 per month. This was a reduction of $1,513 per month from her reasonably expected monthly expenses during the marriage marriage.

As noted above, the reduction of her housing expense from $2,445 per month to $1,600 per month still allowed wife to reside in the same neighborhood, albeit in a downsized three bedroom apartment rather than a spacious house. With the lower housing expense, she could also still obtain a modest-sized home on the west side of the freeway. Along with the anticipated downsized living situation the court had reduced wife’s reasonably anticipated expenses for utilities. The reduction of her vehicle expense from $533 per month to $250 still allowed her to drive a safe, fuel efficient car, although not necessarily a gas guzzling SUV as she was accustomed to.

In addition, the trial court declined wife’s request for education expenses, noting that there was no evidence that wife had sought to further her education either during the marriage or during the parties’ separation.

Utah’s Supreme Court did not find that these reductions constituted an abuse of discretion.

Nor did the Court agree with wife that the reduction of the alimony term was inappropriate. The Court observed that the statute provided that alimony cannot continue longer than the length of the marriage absent exigent circumstances. Thus, the length of the marriage was a maximum term, but there was nothing in the statute that would bar a shorter term. Wife failed to convince the Court that the reduced term resulted in such a serious inequity as to amount to an abuse of discretion.

The Court noted that Utah courts regularly uphold alimony awards that are less than the length of the marriage. In Warren v. Warren, 655 P.2d 684 (Utah 1982), the Court upheld an alimony award of four years following a thirty year marriage, despite wife’s contention that the award was insufficient in amount and duration because she had no previous work experience and had suffered a medical disability of the hands. The Court upheld the award because there was no medical or other evidence of wife’s disability and there was no evidence to show that she could not become employable within the four year alimony term.

The question is whether or not the reduced alimony term results in a serious inequity so as to constitute an abuse of discretion.

The Court has held that it is an abuse of discretion to shorten the alimony period where it is unlikely the recipient spouse would be able to maintain the same standard of living after the alimony period ended. Before fashioning an alimony award of overly short duration, trial courts are supposed to demonstrate that the recipient spouse can close the gap between actual expenses and actual income before the end of the alimony term. So, for example, in Jones v. Jones, 700 P.2d 1072, it was held that a shortened “rehabilitative” alimony award was inequitable where Wife was in her mid 50’s, possessed few marketable skills, and had little hope of retraining.

In Jensen v. Jensen, 2008 UT App. 392, on the other hand, wife had complained about an alimony term of five years following a seventeen year marriage. She argued that her advanced age prevented her from acquiring the skills needed to bridge the gap between actual expenses and actual income. But the appellate court upheld the alimony term, stating that five years was enough time for the recipient spouse to put her house in order and support herself.

The Court in the instant case found the reasoning of Jensen to be applicable. Based on all the facts and circumstances of the case it appeared that the ten year alimony term was enough to allow wife to acquire marketable skills and bridge the gap between actual expenses and actual income.

Moreover, the Court noted that during the marriage husband had encouraged wife to further her education and obtain more marketable skills, and she had declined to do so. As in Warren, the court refused to place on husband the burden of wife’s lack of marketable skills where he had encouraged her to work on her bachelor’s degree and obtain work experience and she had not done so.

Finally, the Court noted that, even if it were to hold that the shortened alimony term was inequitable based on purely economic factors, it could not conclude that the result was inequitable when the fault statute was also factored into consideration. For example, the Riley court had stated that a spouse’s “fault goes a long way in explaining the propriety of a $900 per month alimony award, even though such an award would be too high if only economic factors were considered.” (In Riley, it was the paying spouse who had been primarily at fault for the marriage breakdown).

The Court also did not find anything inappropriate about the trial court’s stepdown alimony award, which gradually decreased in the final years of the alimony. Wife had acknowledged in her briefing that stepdown awards, like shortened awards, are not per se inappropriate. But she argued the decreasing award was inappropriate in her particular case because it did not allow her to meet her needs.

But the Court observed that wife did have some prior work history and a basic set of marketable skills. These facts had allowed the trial court to opine that she could probably go out and earn more than minimum wage. She could also obtain employment and gain increasing work experience and skills during the ten year alimony term. While wife had argued medical problems prevented her from working, the Court noted that it was her burden of proof to show her medical impairments and the work limitations they imposed, but she had not done so.

She argued that husband had not enlisted a vocational expert to testify that there were viable career options for her. But the Court opined that it was wife’s burden to show that there were no viable career options available to her.

Although wife asked for $675 per month for educational expenses, there was no evidence at trial that she had been seeking educational opportunities. And while she claimed that she would require these expenses in the future, there was no evidence of how much such education would cost.

Moreover, the Court noted that wife had been awarded a sizable property settlement in the hundreds of thousands of dollars, from which show could pursue educational opportunities. In addition, even though she had been awarded the 2007 Yukon Denali that was fully paid for, she had also been allowed $250 per month for a vehicle expense. The Court observed that she could, if she should so choose, use this money to further her education.

Wife contended that the court erred by denying her claim that she was disabled and that, even if she were, she could obtain relief from government programs or private charitable organizations. The Court found, however, that although this injunction may have been inartfully worded, the court was merely trying to reassure her that if she became medically disabled, she would not be wholly without recourse. But the burden of proof had been on her to show that she was disabled from working, and she had not done so.

As her fourth and final contention, wife had argued that the court erred in important to her the abilities to earn minimum wage. But her attorney at trial had stipulated that it would be appropriate to impute to her minimum wage. Thus, the “invited error” doctrine came into play, under which courts may “decline to engage in plain error review when counsel made an affirmative statement that led the court to commit the error.” The Court therefore declined to review this issue.

Finally, the Court did not find any error, as alleged by wife, in the trial court’s alleged failure to consider the impact of taxes in the alimony award, because wife did not demonstrate that this alleged error had harmed her or had any negative effect on the outcome of the case. Thus, even if it were error, it was harmless error.

See Gardner v. Gardner, 2019 UT 28.

From the Gardner case, we can see that Utah’s alimony fault statute truly does have teeth.

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.

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