Tobler v. Tobler

2014 UT App 239

_________________________________________________________

THE UTAH COURT OF APPEALS

BRITTNEY TOBLER,

Petitioner and Appellee,

v.

RUSSELL TODD TOBLER,

Respondent and Appellant.

Opinion

No. 20120912-CA

Filed October 9, 2014

Sixth District Court, Richfield Department

The Honorable George M. Harmond

No. 104600270

J. Bryan Jackson, Attorney for Appellant

Michael R. Labrum and Johanna Williams,

Attorneys for Appellee

JUDGE JOHN A. PEARCE authored this Opinion, in which JUDGE

STEPHEN L. ROTH and SENIOR JUDGE PAMELA T. GREENWOOD

concurred.1

PEARCE, Judge:

¶1 Russell Todd Tobler (Husband) appeals from the district

court’s decree of divorce, findings of fact, and conclusions of law.

We affirm the district court in all respects but one. We determine

that, on the record before us, we cannot discern whether the district

court properly calculated Husband’s total income for child support

purposes. We remand this matter for the entry of further findings

1. The Honorable Pamela T. Greenwood, Senior Judge, sat by

special assignment as authorized by law. See generally Utah R. Jud.

Admin. 11-201(6).

Tobler v. Tobler

regarding Husband’s income and, if warranted by those findings,

a recalculation of the child support award.

BACKGROUND

¶2 Husband and Brittney Tobler (Wife) married on October 4,

2007, in Manti, Utah. They had a daughter in April 2010. Wife was

pregnant with twins when she filed for divorce on December 15,

2010. The twins, a boy and a girl, were born in February 2011.

¶3 Wife’s divorce petition sought sole physical custody and

joint legal custody of the children. She also sought alimony, the

equitable division of the parties’ real and personal property, and a

one-half share in Husband’s pension, profit-sharing plan, and other

retirement benefits. Wife also requested that Husband be ordered

to assume and pay all of the marital debts and obligations.

¶4 Along with her petition, Wife filed a motion for temporary

relief, arguing that she was unable to work due to her pregnancy.

She requested possession and use of the marital home, reasonable

temporary child support and alimony, and an order that Husband

service the marital debt during the pendency of the action.

Husband agreed that child support was appropriate and that he

should be responsible for the marital debt, but argued that his debt

service should ultimately be factored into the equitable division of

the parties’ property. Husband also opposed any award of

temporary alimony, arguing that Wife possessed four post-high-

school degrees and was capable of working and supporting herself,

particularly if Husband made the marital debt payments. Husband

also opposed Wife’s request for the marital home, arguing that she

had already moved in with her mother.

¶5 In May 2011, while Wife’s motion for temporary relief was

pending, Husband filed a motion to bifurcate the proceedings,

asking the district court to grant the parties an immediate divorce

and reserve all other issues for future disposition. Husband argued

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that bifurcation would facilitate resolution of the financial

obligations that were a “bleeding wound” upon the marital estate,

prevent Wife from holding Husband’s life “hostage,” and give

Husband “some tranquility in his life.” Wife initially failed to

respond to the bifurcation motion, but when Husband filed a notice

to submit for decision, Wife filed an opposition arguing that

bifurcation would create an undue delay in the proceedings and

increase their cost.

¶6 Following a September 2011 hearing, the court issued

temporary orders granting Wife custody of the children, ordering

Husband to pay child support of $2,033 per month, and awarding

statutory parent-time to Husband. The court awarded Wife sole

possession of the marital home, ordered Husband to maintain all

marital debt except for the payments on a single vehicle, and

awarded Wife temporary spousal support of $2,500 per month.

¶7 The district court denied Husband’s bifurcation motion,

determining that Husband had failed to demonstrate “a

convenience or necessity issue that would be solved by

bifurcation.” The court further explained that the bifurcation

decision was a matter of the court’s discretion and that, in its

experience, bifurcation tended to increase delay. The court also

expressed its concern that bifurcation might affect issues such as

Wife’s access to health insurance.

¶8 The district court held a bench trial in April 2012 and issued

a memorandum decision in June 2012. The court awarded Wife sole

physical custody of the children and awarded Husband and Wife

joint legal custody. Wife was awarded child support of $2,048 per

month based on Husband’s monthly income of $12,867. The court

calculated Husband’s monthly income by averaging the income on

his last three tax returns and adding $1,285 per month in rental

income generated from a house Husband owned in St. George,

Utah.

¶9 The district court also awarded Wife alimony of $2,000 per

month for a period of time equal to the length of the marriage as of

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the date of the memorandum decision—four years and eight

months. The district court rejected Wife’s argument that alimony

should be extended beyond the length of the marriage due to

Wife’s continuing educational needs but also rejected Husband’s

argument that the court should count Husband’s temporary

alimony payments against the total period of alimony awarded.

¶10 Husband objected to the memorandum decision, raising

issues relating to the award of parent-time, the calculation of his

income, the calculation and length of alimony, property division,

and child support. The district court issued an order overruling

most of Husband’s objections on September 28, 2012.2 The court

issued its final decree of divorce that same day. The divorce decree

largely tracked the relief granted in the prior memorandum

decision and ordered Husband and Wife to each bear their own

attorney fees and costs. Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Husband argues that the district court erred when it denied

his motion to bifurcate the proceedings and entered its temporary

orders awarding spousal support to Wife during the pendency of

the action, requiring Husband to service the bulk of the marital

debt, and forbidding the sale of marital assets. “Trial courts have

broad discretion to bifurcate trials, and we review the [district]

court’s bifurcation [decision] in this case for an abuse of that

discretion.” Parker v. Parker, 2000 UT App 30, ¶ 5, 996 P.2d 565. The

abuse of discretion standard also applies to our review of the

district court’s temporary orders. Stonehocker v. Stonehocker, 2008

UT App 11, ¶ 39, 176 P.3d 476 (“The trial court has significant

2. The district court did, upon Husband’s objection, reduce

Husband’s available income for alimony purposes by $500 per

month to reflect rent payments he made to his mother. It also

clarified the value of Husband’s 401(k) account as of the date of the

marriage.

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discretion in fashioning temporary support during the pendency

of a divorce action.”).

¶12 Husband also raises multiple arguments challenging the

various provisions of the final decree of divorce, including

arguments relating to parent-time, child support, alimony, and

property division. We review a district court’s decisions in these

areas for abuse of discretion. See Bell v. Bell, 2013 UT App 248, ¶ 11,

312 P.3d 951 (“We review a trial court’s child support order for an

abuse of discretion.” (citation and internal quotation marks

omitted)); Boyer v. Boyer, 2011 UT App 141, ¶¶ 8–9, 259 P.3d 1063

(discussing our standards of review of property division and

alimony issues); Childs v. Childs, 967 P.2d 942, 946 n.2 (Utah Ct.

App. 1998) (“[W]e will not disturb the trial court’s visitation

determination absent a showing that the trial court abused its

discretion.”).

ANALYSIS

I. Marshaling

¶13 As an initial matter, we address Wife’s contention that

Husband’s claims on appeal must fail because they challenge the

district court’s factual findings and Husband has not marshaled the

evidence in support of the challenged findings. Wife relies on prior

cases—which were good law at the time the briefs in this matter

were submitted—that treated an appellant’s failure to marshal as

a type of procedural default that precluded this court from even

reaching the merits of arguments that were not supported by

adequate marshaling. See, e.g., Chen v. Stewart, 2004 UT 82, ¶ 19, 100

P.3d 1177 (“If the evidence is inadequately marshaled, this court

assumes that all findings are adequately supported by the

evidence.”).

¶14 However, after Wife submitted her appellate brief, the Utah

Supreme Court issued its decision in State v. Nielsen, 2014 UT 10,

326 P.3d 645. In Nielsen, the supreme court expressly “repudiate[d]

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the default notion of marshaling sometimes put forward in our

cases and reaffirm[ed] the traditional principle of marshaling as a

natural extension of an appellant’s burden of persuasion.” Id. ¶ 41.3

The supreme court explained that marshaling remains an

important part of successfully challenging factual findings on

appeal because “a party challenging a factual finding or sufficiency

of the evidence to support a verdict will almost certainly fail to

carry its burden of persuasion on appeal if it fails to marshal.” Id.

¶ 42. But the supreme court also instructed appellees and appellate

courts alike to address the merits of an appellant’s arguments

without relying on marshaling as a “stand-alone basis” for rejecting

claims on appeal. Id. ¶ 44. “The focus should be on the merits [of

the arguments presented], not on some arguable deficiency in the

appellant’s duty of marshaling.” Id. ¶ 42.

¶15 In light of Nielsen, we decline Wife’s invitation to summarily

reject Husband’s arguments for his alleged lack of marshaling.

Rather, we address the merits of Husband’s arguments and

consider any marshaling deficiencies as part of our overall

evaluation of whether Husband has met his burden of persuasion

on appeal.

II. Bifurcation and Temporary Orders

¶16 Husband argues that the district court erred when it denied

his motion to bifurcate the proceedings. Husband’s motion asked

the district court to terminate the parties’ marriage by entering a

decree of divorce while reserving all other issues for future

resolution. The reasons Husband presented to the district court in

support of his motion were that bifurcation would help to resolve

the financial obligations that were a “bleeding wound” upon the

marital estate, prevent Wife from holding Husband’s life

3. The supreme court also expressly repudiated “the requirements

of playing ‘devil’s advocate’ and of presenting ‘every scrap of

competent evidence’ in a ‘comprehensive and fastidious order.’”

State v. Nielsen, 2014 UT 10, ¶ 43, 326 P.3d 645 (citation omitted).

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“hostage,” and give Husband “some tranquility in his life.”4

Husband now argues that the district court erred in denying his

motion, because both parties wanted a divorce and because

bifurcation would have furthered convenience and avoided

prejudice.

¶17 The district court may order separate trials on any claims or

issues “in furtherance of convenience or to avoid prejudice.” Utah

R. Civ. P. 42(b). “Trial courts have broad discretion to bifurcate

trials, and we review the [district] court’s bifurcation in this case for

an abuse of that discretion.” Parker v. Parker, 2000 UT App 30, ¶ 5,

996 P.2d 565. The district court’s written order denied Husband’s

motion on the ground that “[t]here needs to be some showing that

there is a convenience or necessity issue that would be solved by

bifurcation and the court cannot find that in this case.” We agree

with Husband that the district court’s articulation of the necessary

showing—“convenience or necessity” rather than “in furtherance

of convenience or to avoid prejudice”—did not track rule 42(b)’s

precise language. However, that articulation did not cause the

district court to abuse its broad discretion to manage the cases

before it.

¶18 At the motion hearing, the district court explained that, in

the court’s experience, bifurcation “tends to delay things” and

stated that “this case is not moving very fast anyway.” The court

also expressed concern about the effect that bifurcation might have

on Wife’s ability to obtain health insurance and similar benefits.

The district court’s decision to deny Husband’s bifurcation motion

for these reasons fell within the bounds of the court’s discretion.

4. Husband did not argue to the district court that bifurcation was

necessary to limit the ultimate duration of the time period for

which he could be ordered to pay alimony. See Utah Code Ann.

§ 30-3-5(8)(j) (LexisNexis 2013) (limiting alimony awards to the

duration of the marriage absent a finding of extenuating

circumstances). We address Husband’s challenge to the duration

of the district court’s permanent alimony award later in this

opinion. See infra ¶¶ 41–42.

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Tobler v. Tobler

¶19 In a related argument, Husband argues that the district

court’s temporary orders had the effect of holding him “hostage”

during the pendency of the litigation due to the requirements that

Husband pay temporary child support and alimony, service the

bulk of the marital debt, and refrain from selling any property.

Husband argues that these requirements were prejudicial to him

and that this prejudice “should have been considered by the trial

court at the time of denying bifurcation.”

¶20 We cannot dispute Husband’s position that, from his

standpoint, these requirements were prejudicial. However,

Husband did not clearly present this prejudice argument to the

district court in support of his bifurcation motion. Even if he had,

the district court possessed the discretion to conclude that any

prejudice to Husband was outweighed by the potential for a more

expeditious resolution in an unbifurcated proceeding. Moreover,

even if the district court had entered an order of bifurcation, there

may still have been a need for temporary orders to govern the

parties’ affairs during litigation of the remaining issues. See Utah

Code Ann. § 30-3-3(3) (LexisNexis 2013) (“In [a divorce action,] the

court may order a party 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.”);

McPherson v. McPherson, 2011 UT App 382, ¶¶ 5–10, 18, 265 P.3d

839 (acknowledging that temporary alimony award “remained in

effect” despite prior entry of bifurcated divorce decree).

¶21 As to the substantive provisions of the temporary orders, the

district court “has significant discretion in fashioning temporary

support during the pendency of a divorce action.” Stonehocker v.

Stonehocker, 2008 UT App 11, ¶ 39, 176 P.3d 476. Husband has not

persuaded us that any aspect of the temporary orders constituted

an abuse of the district court’s significant discretion, and we

therefore affirm those orders. See generally State v. Robison, 2006 UT

65, ¶ 21, 147 P.3d 448 (discussing appellants’ burdens on appeal).

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III. Parent-Time

¶22 Husband argues that the district court erred in awarding

parent-time. Although Husband’s exact argument is unclear, he

appears to argue that the district court erred in awarding him

parent-time with the parties’ oldest daughter, who was not yet five

years old, in accordance with the statutory minimum established

by Utah Code section 30-3-35.5 rather than under the more

generous provisions of section 30-3-35. See Utah Code Ann. § 30-3-

35 (LexisNexis 2013) (establishing minimum parent-time for

children ages five to eighteen); id. § 30-3-35.5 (establishing

minimum parent-time for children under five years of age).

Husband argues this was improper because both he and Wife

agreed that he should have additional parent-time with the eldest

child.

¶23 In overruling Husband’s objection on this issue, the district

court stated,

Based on the evidence at trial, the court found it was

in all the children’s best interests that parent time be

based on the statutory time for the youngest

children. The evidence was clear that [the oldest

daughter] had a difficult time adjusting to parent

time and it is clearly in her best interests for parent

time to include the twins.

The district court also stated that it was “unclear where [Husband]

developed the idea that ‘it was the intention of the court to grant

additional visitation’ relative to [the oldest daughter].”

¶24 The district court has the discretion to establish parent-time

in the best interests of the children. Childs v. Childs, 967 P.2d 942,

946 n.2 (Utah Ct. App. 1998). Husband presents no authority to

support his assertion that the district court abused its discretion in

ordering that he have equal parent-time with all of the parties’

children, despite the slight age difference between them. The

parties’ oldest daughter is less than a year older than the twins, and

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the district court expressly found that it was “clearly in her best

interests for parent time to include the twins.” Husband has not

persuaded us that the district court abused its broad discretion in

ordering the parties’ three young children to have parent-time with

Husband together, consistent with the statutory schedule

applicable to all of the children based on their ages.

¶25 Husband also suggests that Wife agreed that Husband

should have additional parent-time with the oldest daughter and

that the district court was obligated to respect the parties’ wishes.

However, there appears to have been no such agreement on this

issue. Wife opposed Husband’s objection to the court’s order,

stating that she “did not agree with [Husband] that visitation for

the oldest child would be in accordance with [Utah Code section]

30-3-35.”

IV. Child Support

¶26 Husband raises two challenges to the district court’s child

support award, both of which attack the district court’s

determination of his income. First, Husband argues that the district

court failed to make adequate factual findings to support its

inclusion of Husband’s overtime wages as part of Husband’s total

available income. Second, Husband argues that the district court

erred when it treated his $1,285 in gross monthly rental income as

available income without deducting his mortgage payments and

other necessary expenses.

¶27 On the overtime issue, Husband relies on the statutory

requirement that income in excess of one forty-hour per week job

may be considered for child support purposes “[i]f and only if

during the time prior to the original support order, the parent

normally and consistently worked more than 40 hours at the

parent’s job.” Utah Code Ann. § 78B-12-203(2) (LexisNexis 2012).

Husband argues that the district court made no findings that

Husband normally and consistently worked in excess of forty

hours per week. See Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169

P.3d 754 (discussing the need for adequate factual findings).

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Tobler v. Tobler

Inadequate findings by the district court will be deemed reversible

error “when the facts are not clear from the record.” Id.

¶28 Here, however, it is clear from the record that Husband

regularly worked overtime hours. Wife testified at trial that

Husband normally worked overtime, and she submitted tax

returns and paystubs reflecting a three-year history of overtime.5

The district court based its determination of Husband’s wage

income on “the average [of Husband’s] last three years’ income

from the parties’ tax returns from 2009 and 2010, and his W-2 from

2011.” To the extent that those three years of income data reflected

Husband’s overtime, the average of the three years’ figures would

reflect the amount of overtime that Husband “normally and

consistently worked” over that time frame.6 See Utah Code Ann.

§ 78B-12-203(2). In light of this record, we see no reason to disturb

the district court’s inclusion of overtime in its determination of

Husband’s wage income.

¶29 On the rental income issue, Husband argues that the district

court erred when it treated the $1,285 per month he receives from

renting out a St. George residence as income, without deducting

the mortgage payments and other necessary business expenses

relating to the rental property. See id. § 78B-12-203(4)(a) (“Gross

income from self-employment or operation of a business shall be

calculated by subtracting necessary expenses required for

self-employment or business operation from gross receipts.”). The

5. Husband seemed to agree that he regularly received overtime

pay. At trial, Wife’s counsel asked Husband to confirm that he had

received overtime pay every year for the last five years. Husband

responded, “I work overtime when they ask me to and to help

others out, yes.”

6. There is no suggestion here that the three-year average of

Husband’s income was inflated by some one-time overtime event

that could not be considered normal and consistent. Certainly,

Husband has cited nothing in the record to support such a

conclusion.

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monthly business expenses Husband identifies include a mortgage

payment of $615, property taxes of $108, and insurance premiums

of $45.

¶30 In overruling Husband’s objection on this issue, the district

court stated that it “clearly took into account [Husband’s] rental

income and the deductions therefrom when determining his income”

for child support purposes. (Emphasis added.) However, based on

our review of the district court’s memorandum decision, it is not

clear that Husband’s claimed business expenses were deducted

from the $1,285 in monthly rent. The memorandum decision stated

Husband’s monthly income to be $12,867, which represented the

three-year average of Husband’s monthly wage income “together

with the $1,285.00 he receives as rental income from the house in St.

George.” (Emphasis added.)

¶31 If the district court failed to deduct Husband’s legitimate

business expenses from his gross rental income, it would constitute

an abuse of the court’s discretion. We therefore remand this matter

to the district court for more explicit findings on what the court

deducted and, if necessary, a recalculation of Husband’s income

taking into account Husband’s reasonable business expenses

relating to the St. George property. The district court should then

recalculate child support and revisit any other issues affected by

the change in Husband’s available income.

V. Alimony

¶32 Husband challenges two aspects of the district court’s

alimony award. First, Husband argues that the district court erred

when it allowed Wife to include $200 in monthly savings as a

reasonable expense in calculating her need but disallowed

Husband’s $1,269 contribution from each paycheck into his 401(k)

account as a reasonable expense in calculating his ability to pay.

Second, Husband challenges the time period for which alimony

was awarded, arguing that Wife was able to support herself by the

time the decree was entered and that the district court’s failure to

allow him credit for his temporary alimony payments resulted in

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alimony being awarded for a period of time in excess of the length

of the marriage.

¶33 We see no abuse of discretion in the district court’s disparate

treatment of the parties’ claimed savings expenses. The district

court found that Wife’s savings expense was reasonable because

“the parties regularly saved during the marriage, and it is

reasonable for [Wife to] continue saving consistent with the parties’

married lifestyle.” See Bakanowski v. Bakanowski, 2003 UT App 357,

¶ 16, 80 P.3d 153 (“The critical question is whether funds for

post-divorce savings, investment, and retirement accounts are

necessary because contributing to such accounts was standard

practice during the marriage and helped to form the couple’s

marital standard of living.”).

¶34 The district court made no such finding regarding

Husband’s 401(k) contributions, ruling instead that those

contributions were not “a reasonable need, but rather a savings

withholding.” Husband does not challenge either the district

court’s express finding that the amount of his 401(k) contributions

was not reasonable or its implicit finding that those contributions

were not consistent with the parties’ marital practice.7 Nor does he

argue on appeal that he should have been allowed a savings

expense equal to Wife’s monthly savings or in some other amount

supported by the parties’ marital practice.

¶35 Rather, Husband argues that the district court’s failure to

allow his 401(k) contributions as a reasonable expense grants Wife

a double recovery because she was also awarded a one-half interest

7. Husband does assert, without any citation to the record, that

“[t]he evidence was uncontroverted that [Husband’s 401(k)

contributions] regularly occurred.” However, this assertion is not

synonymous with a claim that such contributions regularly

occurred over the course of the parties’ marriage. And again, Husband

has not cited any evidence in the record that would support a

finding that his 401(k) contributions comported with a pattern

established during the marriage.

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in the marital portion of the 401(k) account. Husband presents no

authority for this position, and we will not disturb the district

court’s ruling on this basis. Further, it would appear that any

“double recovery” would result from Husband’s voluntary

commingling of his post-separation income with a known marital

asset that would likely be valued as of the date of the decree. See

Rappleye v. Rappleye, 855 P.2d 260, 262 (Utah Ct. App. 1993) (“As a

general rule, the marital estate is valued at the time of the divorce

decree.”). For these reasons, we see no abuse of discretion in the

district court’s treatment of the parties’ post-separation savings.

¶36 We also see no abuse of discretion in the amount or duration

of the district court’s alimony award. In evaluating Husband’s

arguments to the contrary, it is helpful to understand how the

district court approached the parties’ alimony disputes. The parties

presented the district court with competing arguments about

Wife’s need for alimony and the length of time that alimony should

be awarded. Wife argued that she was unable to return to work

because she needed to care for the parties’ three young children.

Husband contended that Wife was capable of working and

supporting herself without alimony. The district court resolved this

dispute in Wife’s favor, ruling that “[t]he parties mutually decided

that [Wife] should give up working in order to care for the parties’

children full time” and that “[i]t is not reasonable in the context of

this case to require [Wife] to work while having the care of three

children all under 3 years of age, at least in the short term.”

Accordingly, the district court found Wife’s present ability to work

was limited and that she was unable to meet her own needs.

¶37 Wife also argued that alimony should be awarded for a

period of time greater than the length of the marriage because she

needed additional education. See Utah Code Ann. § 30-3-5(8)(j)

(LexisNexis 2013) (“Alimony may not be ordered for a duration

longer than the number of years that the marriage existed unless,

at any time prior to termination of alimony, the court finds

extenuating circumstances that justify the payment of alimony for

a longer period of time.”). Husband argued that Wife’s desire for

further education did not constitute an extenuating circumstance

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warranting alimony in excess of the duration of the marriage.

Husband also argued that the district court should count his

temporary alimony payments toward the statutory duration-of-

the-marriage time limit.

¶38 The district court rejected Wife’s request for an extended

alimony period, ruling that Wife had presented “no legal support

for the extension of alimony to allow for further education.” The

district court then ruled that it would “not extend alimony beyond

the length of the marriage, but will order alimony payments for

four years and eight months.” (Emphasis added.)

¶39 The district court’s language implicitly rejected Husband’s

argument that he should have received credit for his prior

temporary alimony payments, a reading that is confirmed by the

district court’s overruling of Husband’s subsequent objection on

this issue. Husband objected that the district court’s memorandum

decision “did not state specifically whether temporary spousal

support previously paid by [Husband] to [Wife] should be credited

against the four-year-eight-month period.” In rejecting Husband’s

objection, the district court stated that it had “ruled on that

argument, by stating the length of alimony as a time certain . . . ;

that ruling precludes temporary alimony already paid as credit

against the final alimony determination.”

¶40 Husband argues on appeal that Wife “was gainfully

employed before marriage and qualified to obtain appropriate

employment with having various degrees should she reenter the

workforce.” Husband then argues, without supporting authority,

that it was unreasonable for the district court to “assume [Wife]

would be unable to work for four years and eight months” due to

her custody of the parties’ three small children. We disagree. One

of the statutory factors that must be considered in determining an

alimony award is “whether the recipient spouse has custody of

minor children requiring support.” Utah Code Ann. § 30-3-

5(8)(a)(v). Prior cases have recognized that a recipient spouse’s

earning capacity may be affected by the custody of children. See

Fletcher v. Fletcher, 615 P.2d 1218, 1223 (Utah 1980) (affirming

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alimony award as “reasonable” where recipient spouse’s “income

was limited by part-time employment so she might give adequate

care and nurturing to the three younger children, ranging in age

from four to eight”); Rehn v. Rehn, 1999 UT App 41, ¶ 9, 974 P.2d

306 (“[I]t is sufficient to impute a lesser income to the recipient

spouse so that she might give adequate care and nurturing to the

parties’ minor children . . . .”). In light of this authority, we see no

abuse of discretion in the district court’s determination of Wife’s

earning capacity.

¶41 Husband also argues that the district court’s award of

alimony for four years and eight months, without giving him credit

for his temporary alimony payments, resulted in a total alimony

award period that exceeds the duration of the parties’ marriage.8

See generally Utah Code Ann. § 30-3-5(8)(j) (limiting the length of

alimony awards to the duration of the of the parties’ marriage).

Husband’s argument assumes that both temporary alimony and

permanent alimony count against Utah Code section 30-3-5(8)(j)’s

presumptive “duration of the marriage” time limit on alimony

awards. In essence, Husband argues that the statutory limit on the

duration of alimony awards begins running upon an award of

temporary alimony rather than upon an award of permanent

alimony.

¶42 Husband has not directed this court to any case that

interprets Utah Code section 30-3-5(8)(j) to include temporary

alimony within that statute’s definition of “alimony” for purposes

of the statute’s time limitation. See id. Nor has he made a supported

argument for his preferred interpretation of section 30-3-5(8)(j)

based on general principles of statutory interpretation. Finally,

Husband has failed to address the district court’s balancing of the

parties’ competing arguments about the proper duration of the

alimony award. These issues are critical to the success of his

argument, and by failing to address them, Husband has failed to

8. Neither party raises any argument that the district court

improperly considered four years and eight months to be the

duration of the marriage.

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meet his burden of persuasion on appeal. See Salt Lake County v.

Butler, Crockett & Walsh Dev. Corp., 2013 UT App 30, ¶ 37 n.5, 297

P.3d 38 (discussing an appellant’s “burden of persuasion on

appeal”); cf. Donnelly v. Donnelly, 2013 UT App 84, ¶ 46, 301 P.3d 6

(“In light of Wife’s failure to analyze why these grounds are

insufficient to support the district court’s valuation decision, her

argument falls short of demonstrating an abuse of discretion.”). In

light of Husband’s failure to meet his burden of persuasion, we will

not disturb the district court’s alimony award based on his

argument that the district court ordered alimony “for a duration

longer than the number of years that the marriage existed.” See

Utah Code Ann. § 30-3-5(8)(j).

VI. Property Division

¶43 Husband argues that the district court erred in its division

of Husband’s 2011 bonus and his 401(k) retirement plan. As to

Husband’s 2011 bonus of roughly $18,000, Husband argues that the

district court erred in treating the bonus as marital property rather

than as Husband’s income and in dividing the bonus equally

between the parties without accounting for the related tax liability.

Husband also suggests that Wife’s portion of the bonus should

have been completely offset by a $10,000 check that Wife had

written to herself and $3,000 that Wife had obtained from an

unauthorized sale of stock. As to the 401(k) account, Husband

argues that the district court undervalued that account as of the

time of the marriage by approximately $2,000, thereby erroneously

increasing the amount that was divided between the parties as part

of the marital estate.

¶44 Husband presents no record citations for any of the

numerous factual assertions that he makes in support of these

arguments, and we will not search the record in an effort to locate

them. See Tanner v. Carter, 2001 UT 18, ¶ 19, 20 P.3d 332 (stating

that it is not an appellate court’s burden “to comb the record for

evidence” in support of an appellant’s arguments); Wohnoutka v.

Kelley, 2014 UT App 154, ¶ 6, 330 P.3d 762 (“An appellate court

should not be asked to scour the record to save an appeal by

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remedying the deficiencies of an appellant’s brief.”). Further, he

has not demonstrated error below with reasoned argument

supported by applicable legal authority. Under these

circumstances, Husband has not carried his burden of persuasion

on his property division issues. See State v. Nielsen, 2014 UT 10,

¶ 34, 326 P.3d 645 (discussing Utah’s briefing requirements as “an

outgrowth of a party’s burden of persuasion on appeal”); State v.

Robison, 2006 UT 65, ¶ 21, 147 P.3d 448 (“It falls squarely upon an

appellant to surmount the filing, briefing, and persuasion burdens

associated with an appeal.”).

VII. Attorney Fees

¶45 Wife asks this court to award her attorney fees and costs

incurred in responding to Husband’s appeal. Wife argues that an

award of attorney fees and double costs is warranted as a sanction

against Husband under rule 33(a) of the Utah Rules of Appellate

Procedure. In the alternative, she asks us to order Husband to pay

her attorney fees and costs pursuant to Utah Code section 30-3-3(1).

¶46 Rule 33(a) of the Utah Rules of Appellate Procedure allows

this court to impose sanctions, which may include attorney fees

and double costs, against a party whose appeal is “either frivolous

or for delay.” Utah R. App. P. 33(a). Wife argues that Husband’s

appeal is “frivolous in its entirety,” citing his failure to marshal the

evidence and to provide record citations to the evidence allegedly

supporting his positions. Wife also asserts that Husband has made

erroneous statements of law with no supporting authority and has

ignored established law when it was contrary to his position.9

¶47 The imposition of rule 33 sanctions “is a serious matter and

only to be used in egregious cases, lest the threat of such sanctions

9. Wife does not provide any specific examples of these alleged

shortcomings and refers us generally to the discussion in the

analysis section of her brief. However, we will not dissect Wife’s

analysis in search of clues as to which of Husband’s arguments she

deems sanctionable.

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should chill litigants’ rights to appeal lower court decisions.” Redd

v. Hill, 2013 UT 35, ¶ 28, 304 P.3d 861. Although the bulk of

Husband’s arguments on appeal have been unsuccessful, we

cannot say that his appeal, taken as a whole, presents the egregious

case that warrants rule 33 sanctions. We decline to award attorney

fees to Wife as a rule 33 sanction under the circumstances of this

case.

¶48 Wife requests in the alternative that we order Husband to

pay her appellate attorney fees and costs under Utah Code section

30-3-3, which provides for attorney fee awards in divorce actions.

See Utah Code Ann. § 30-3-3(1) (LexisNexis 2013) (allowing awards

of fees and costs against a party to a divorce proceeding “to enable

the other party to prosecute or defend the action”). Ordinarily, we

award appellate attorney fees and costs when a party was awarded

fees and costs below and then prevails on appeal. Bell v. Bell, 810

P.2d 489, 494 (Utah Ct. App. 1991). In this case, however, the

district court expressly ordered both parties to bear their own

attorney fees and costs. Thus, the general rule that a party who is

awarded fees below is entitled to an award of appellate fees after

a successful appeal does not apply here. See Cantrell v. Cantrell,

2013 UT App 296, ¶ 22 n.6, 323 P.3d 586 (“An award of fees on

appeal requires both a fee award below and success in the appellate

court.” (citation and internal quotation marks omitted)).

¶49 Notwithstanding the district court’s refusal to award her

attorney fees below, Wife argues that this court has the discretion

to award her appellate attorney fees pursuant to Utah Code section

30-3-3. In support of her request, Wife cites—but does not

analyze—Maughan v. Maughan, 770 P.2d 156 (Utah Ct. App. 1989).

See id. at 162–63 (stating that section 30-3-3’s grant of authority

“includes attorney fees incurred on appeal”). In Maughan, this court

awarded appellate attorney fees pursuant to Utah Code section 30-

3-3, but, in that case, the trial court had awarded attorney fees

below. See id. at 159. Even assuming that Utah Code section 30-3-3

provides an exception to the general rule that a party must be

awarded fees below to receive fees on appeal, Wife has not

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persuaded us that an award of appellate fees is merited in this case.

We therefore deny Wife’s request for appellate attorney fees.

CONCLUSION

¶50 We affirm the district court’s denial of Husband’s motion to

bifurcate, as well as the court’s temporary orders. However, we

cannot determine whether the district court deducted Husband’s

reasonable business expenses from his rental income in calculating

Husband’s total income for child support purposes. We therefore

remand for further proceedings to determine Husband’s net rental

income and, if necessary, to adjust the child support award and

other related calculations. In all other respects, we affirm the

district court’s decree of divorce, findings of fact, and conclusions

of law.

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