Anderson v. Anderson

2018 UT App 19

THE UTAH COURT OF APPEALS

LYNESSA MICHELLE ANDERSON,

Appellee,

v.

LOREN PRICE ANDERSON,

Appellant.

Opinion

No. 20160507-CA

Filed February 1, 2018

Fourth District Court, Provo Department

The Honorable Samuel D. McVey

No. 084400367

Rosemond G. Blakelock, Attorney for Appellant

Jill L. Coil and Luke A. Shaw, Attorneys for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

MICHELE M. CHRISTIANSEN and JILL M. POHLMAN concurred.

TOOMEY, Judge:

¶1 Following a bench trial for Loren Price Anderson’s

petition to modify child support and alimony, the district court

awarded Lynessa Michelle Anderson $1,900 per month for

alimony, $714.64 for child support, and $16,403.44 in attorney

fees. Loren 1 appeals these awards, contending the district court

abused its discretion by (1) imputing income to him in the

amount of $6,662 per month; (2) awarding Lynessa alimony in

excess of her actual needs; (3) awarding child support to Lynessa

1. “As is our practice in cases where both parties share a last

name, we refer to the parties by their first name with no

disrespect intended by the apparent informality.” Smith v. Smith,

2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

Anderson v. Anderson

based on the improperly imputed income; and (4) awarding

Lynessa attorney fees without “appropriate consideration of the

relevant attorney fees factors.”

¶2 We agree with Loren that the court abused its discretion

in awarding Lynessa alimony in the amount of $1,900 per

month, but only to the extent that it erroneously considered

retirement fund contributions in Lynessa’s monthly expenses,

because they were not enjoyed during the marriage, and we

remand solely for removal of that amount from the alimony

award. But we conclude there was no abuse of discretion when

the district court included anticipated car loan payments and

health insurance in Lynessa’s monthly expenses, because

alimony need not be based solely on current expenses.

¶3 We decline to address Loren’s claims of error with respect

to his imputed income and the award of child support based on

his imputed income because he failed to support his argument

with reasoned analysis using legal precedent.

¶4 Finally, the district court did not abuse its discretion in

awarding attorney fees to Lynessa based on her need and

Loren’s ability to pay them.

BACKGROUND

¶5 Loren and Lynessa were married from 1989 to 2008.

During their marriage, Lynessa stayed home to raise their four

children while Loren worked as a contractor installing carpet

and countertops. According to Lynessa, during the marriage

Loren was “a workaholic,” “always looking for the next job,”

and was a great provider for the family. Indeed, there was

money for extras: two of their sons, Tyler and Steele, were on

hockey teams that traveled for games, which could cost more

than $7,000 in fees and other expenses per year, which the family

was able to pay. Loren also “sometimes [paid] for other kids’

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hockey tuition fees because their families couldn’t afford it

themselves.” Tyler recounted that while his parents were

married, “we never went without. . . . We had everything we

needed.”

¶6 After working for different companies for a few years

early on in the marriage, Loren started his own contracting

business. He primarily submitted subcontracting bids to Action

Target, a construction company that provided installations for

military, law enforcement, and commercial gun ranges. The

money he earned was deposited into a checking account

separate from Lynessa’s checking account, and whenever

Lynessa needed to pay bills or required funds for the children,

Loren gave her cash. Lynessa was never privy to what Loren

earned for each project and was rarely made aware of the

identity of the contractor. But Tyler, Steele, and Lynessa each

observed Loren carrying a great deal of cash. After a project’s

completion, Loren paid cash to his workers.

¶7 In 2006, the Andersons’ marriage started to break down.

Loren admitted he was “having some troubles at that time” and

began using drugs. By Lynessa’s account, Loren was no longer

“in his right mind set” and he became “very promiscuous” and

she “didn’t want him around anymore.” Loren’s drug use

rendered him incapable of earning an income for a time and it

ultimately led to their divorce.

¶8 In 2008, the district court entered a default decree of

divorce after Loren failed to respond to Lynessa’s petition.

Because Loren did not respond and failed to assist the court with

financial documents, the court relied on his 1099 Form from 2007

showing an annual income of $219,246 “or $18,271 per month” to

determine his ability to pay child support and alimony. The

court imputed income to Lynessa in the amount of $1,014 per

month. Ultimately, Loren was ordered to pay $2,945 per month

for child support and $2,719 per month for alimony. The child

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support obligation was to be reduced as each child reached the

age of eighteen, and the alimony obligation was to continue for a

period equal to the length of the marriage.

¶9 Beginning around the time of the divorce, Loren pleaded

guilty to drug and fraud related crimes and was in and out of jail

for three years. Though he was obligated to pay Lynessa a total

of $5,664 each month for alimony and child support, he rarely

paid and never in the full amount. When he did pay, it was

always in cash, until the Office of Recovery Services (ORS)

became involved. Lynessa testified, “We would go long periods

of time without anything from [Loren]. For the longest time he

was paying 200 a month, and he just recently changed it to

paying [550].” Even after ORS became involved, Lynessa

received only $600 per month for combined child support and

alimony. This required Lynessa to receive financial assistance

from her church, friends, and family. She also sold some of her

gold, jewelry, and other items to provide for herself and the

children. But even with this help, she was always behind on

bills, and neither she nor the children lived a lifestyle similar to

what they enjoyed during the marriage. Tyler testified that their

living conditions changed after the divorce, that Lynessa could

not fix things around the house, that they relied on their church

for food, and that without the money for alimony or child

support, Lynessa worked as often as she could “even if it meant

not seeing [the children] as often.”

¶10 In 2011, Loren filed a petition to modify child support and

alimony (the Petition) based on a substantial change in

circumstances that resulted in a decrease in income from the

time the divorce decree was entered. He alleged that he could

not afford to pay child support or alimony because the amount

he was ordered to pay was “in excess of [his] income.” Loren

claimed he had no income during his incarceration and a

decreased ability to earn an income similar to what he had

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earned during the marriage because he could no longer maintain

his own construction business.

¶11 Lynessa and Loren each filed financial declarations and

other documents related to their respective incomes and

expenses. Lynessa provided her 2014 tax return and pay stubs

from 2015, which supported her net monthly income of $2,572.01

as purported in her financial declaration, and claimed monthly

expenses in the amount of $5,496.21. Loren provided incomplete

tax returns for the years he had actually filed them and monthly

pay stubs from one employer with hourly rates that varied from

about $20 per hour to $33 per hour. But Loren claimed he was

earning only $11 per hour, or $2000 per month.

¶12 The district court held a bench trial in 2015 to resolve the

issues Loren raised in the Petition. At trial, most of the testimony

related to Loren’s ability to earn income, whether he was

actually earning only $2,000 per month, and whether he or his

new wife (New Wife) owned a construction company.

¶13 Around the time Loren filed the Petition, he had initiated

a romantic relationship with New Wife and helped her to

register a construction company, Steelcoat. New Wife had never

owned a business before, let alone a construction company, and

both New Wife and Loren admitted that she relied on Loren to

operate Steelcoat. Loren claimed he was only an employee of

Steelcoat and made just $11 per hour, or $2,000 per month, but

also admitted at trial that he was the “face [of Steelcoat] to a lot

of people at Action Target”—the construction company that

subcontracts most of Steelcoat’s work and with which Loren has

had a long professional relationship.

¶14 Loren’s claimed income and whether New Wife was

indeed the sole proprietor of Steelcoat were called into question

when New Wife admitted that Loren helped create all of the bids

Steelcoat sent to different companies and that she was not sure

whether the bids needed to be signed before submission. In

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addition, a representative from Action Target testified that

submitting bids is “pretty specific” and “detailed” work that

requires a bidder to have “at least done some [installation] work

before, or be guided in what it takes to do it.” The representative

also testified that Action Target works closely with its

subcontractors during projects and that when it accepts

Steelcoat’s bids the company communicates with Loren and not

with New Wife. Further, Loren admitted that Action Target has

hired him, personally, to complete certain of its projects, but he

did not provide any information related to the payments he

received for those projects.

¶15 In addition to Loren’s failure to provide the court with a

complete tax return, other than a 2004 tax return, to support his

claimed monthly income of $2,000 per month, Lynessa’s attorney

elicited testimony from Steele that further negated Loren’s claim

about his income. Steele testified that when he asked Loren for

financial help for hockey fees just before the trial, Loren

responded that if Lynessa “would stop coming after him [for]

money” that “it would be easier for him to not have to hide what

he’s doing.” And when the court asked about his ability to earn a

better income, Loren admitted he had not applied for

employment that would pay more than $11 per hour “in the last

three or four years” prior to the trial.

¶16 After trial, the district court entered findings of fact and

conclusions of law. It found that there had been a “material and

substantial change in circumstance” with respect to the incomes

of both parties that allowed for modification of the divorce

decree. Because Loren failed to provide complete financial

documents or tax returns, the court had to determine an

appropriate amount of income to impute to him. It found

incredible the testimony regarding Loren’s income and New

Wife’s sole ownership of Steelcoat. Loren admitted that Action

Target employed him personally for specific projects, yet

provided the court with no documentation to show what he was

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paid or invoice records “from his prior relationship with Action

Target” to give the court a general idea of the income Loren was

making and could continue to make. The court also found that

Steele’s testimony that Loren was “hid[ing] things” from

Lynessa was a “refer[ence] to unreported income.” The court

therefore relied on Loren’s 2004 tax return, which represented a

period when Loren owned and operated a company similar to

Steelcoat, to impute income to him. In 2004, Loren’s adjusted

gross income was $41,317. The court added $20,000 to this

amount based on what Loren paid for his sons’ hockey expenses

and his ability to pay for other team members’ fees. The court

also considered inflation rates and ultimately imputed income to

him in the amount of $79,948 annually, or $6,662 monthly.

¶17 When determining the amount of alimony to award

Lynessa, the court addressed her claimed monthly expenses.

These amounted to $5,496.21, but the court removed “the

amount spent on adult children, school fees which can be

waived[,] and pet care” and found that her reasonable monthly

expenses were $4,400. Based on these expenses and her monthly

income of $2,513, the court awarded $1,900 per month for

alimony. This amount was to be applied retroactively,

subsuming the original $2,954 monthly award, starting from the

time the divorce decree was entered and lasting for a period

equal to the length of the marriage. The court also reduced the

award of child support to $714.64 per month for the parties’

remaining minor child.

¶18 Loren timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶19 Loren raises four issues on appeal. First, he contends the

district court abused its discretion in imputing his monthly

income at $6,662. In a divorce action, the district court “‘is

permitted considerable discretion in adjusting the financial and

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property interests of the parties, and its actions are entitled to a

presumption of validity.’” Rayner v. Rayner, 2013 UT App 269,

¶¶ 4, 26, 316 P.3d 455 (quoting Goggin v. Goggin, 2013 UT 16,

¶ 44, 299 P.3d 1079). We will reverse only if “(1) there was a

misunderstanding or misapplication of the law resulting in

substantial and prejudicial error; (2) the evidence clearly

preponderated against the finding; . . . (3) such a serious inequity

has resulted as to manifest a clear abuse of discretion”; or (4) the

district court “abuse[d] its discretion by failing to enter specific,

detailed findings supporting its financial determinations.” Id.

(citations and internal quotation marks omitted).

¶20 Second, Loren contends the district court erred in

awarding Lynessa alimony in the amount of $1,900 per month,

“even if [Loren’s] income should be imputed at $6,662,” because

the award was “hundreds of dollars in excess of [Lynessa’s]

stated monthly needs” because it included anticipated expenses

and was combined with the award of child support.

¶21 Third, Loren contends the district court erred in “setting

[his] child support obligation in an amount based upon his

imputed income of $6,662” per month. We review the district

court’s “decisions regarding child support and alimony under

the abuse of discretion standard.” Andrus v. Andrus, 2007 UT

App 291, ¶ 9, 169 P.3d 754.

¶22 Finally, Loren contends the district court erred in

awarding Lynessa attorney fees because it failed to consider the

“relevant attorney fees factors.” Although the decision regarding

attorney fees in divorce proceedings “rests primarily in the

sound discretion of the [district] court,” we will reverse the

award if the court fails to provide adequate findings of fact

regarding the following factors: (1) the receiving spouse’s

financial need, (2) the paying spouse’s ability to pay, and (3) the

reasonableness of the requested amount of fees. See Oliekan v.

Oliekan, 2006 UT App 405, ¶ 30, 147 P.3d 464.

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ANALYSIS

I. Imputed Income

¶23 Loren first contends the district court erred in imputing

$6,662 in monthly income to him because the court used his 2004

tax return to determine the amount he was capable of making,

rather than using the pay stubs or more recent tax returns, and

added $20,000 to that amount based on expenses incurred

during the marriage that were discussed at trial. But Loren has

provided no reasoned analysis to support this contention and we

therefore affirm with respect to this issue.

¶24 Rule 24 of the Utah Rules of Appellate Procedure

identifies the briefing requirements on appeal. An appellant’s

brief must assert contentions of error that occurred in the

proceedings below and develop a reasoned argument for why

the purported errors should be reversed. See Utah R. App. P.

24(a)(8). The appellant’s argument must be supported with

citations to the record and legal authority that governs the issues

presented. See id. An argument is inadequately briefed, and in

violation of rule 24, when it “merely contains bald citations to

authority [without] development of that authority and reasoned

analysis based on that authority.” Bank of America v. Adamson,

2017 UT 2, ¶ 11, 391 P.3d 196 (alteration in original) (citation and

internal quotation marks omitted).

¶25 The Utah Supreme Court has recently clarified that the

failure to comply with rule 24 is no longer “an absolute bar to

review of an argument on appeal.” See Rose v. Office of Prof’l

Conduct, 2017 UT 50, ¶ 64, petition for cert. filed, Dec. 4, 2017 (No.

17-7003). But failure to adequately brief an argument will almost

certainly result in the failure to “‘carry [the] burden of

persuasion on appeal.’” See id. (quoting Adamson, 2017 UT 2, ¶ 12).

¶26 Loren has marshaled the record facts he is challenging

with respect to his imputed income—sixteen pages were

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devoted to this issue, alone. See Utah R. App. P. 24(a)(6)(A); see

also id. R. 24(a)(8). Loren also provided citations to a few cases

and a statute. But he has failed to apply the legal authority he

cited to any of the facts.

¶27 Because Loren failed to develop a reasoned argument

with the use of legal authority to support his contention that the

district court improperly imputed income to him, he has failed

to meet his burden of persuasion on appeal with respect to this

issue. See Adamson, 2017 UT 2, ¶ 12. We therefore affirm the

district court’s decision to impute to Loren a monthly income of

$6,662. As a result, we likewise do not address his contention on

appeal that the district court erred in “setting [his] child support

obligation in an amount based upon his imputed income of

$6,662” per month.

II. Alimony

¶28 Loren contends that “even if the court’s imputation of

income” to him was correct, the alimony award of $1,900 per

month was in excess of Lynessa’s needs. Loren makes two

overarching arguments related to this contention. First, he takes

issue with items listed in Lynessa’s financial declaration that

“were not actual expenses,” “were not supported by any

evidence,” and “did not exist” at the time of the marriage.

Second, he argues the award was hundreds of dollars in excess

of Lynessa’s needs because she was also awarded $714.64 in

child support.

¶29 In divorce proceedings, the district court’s determinations

related to financial interests of the parties “are entitled to a

presumption of validity” and we will not reverse absent a clear

abuse of discretion. See Goggin v. Goggin, 2013 UT 16, ¶ 26, 299

P.3d 1079 (citation and internal quotation marks omitted). “The

purposes of an alimony award include enabling the receiving

spouse to maintain, as nearly as possible, the standard of living

enjoyed during the marriage, and preventing the receiving

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spouse from becoming a public charge.” Rudman v. Rudman, 812

P.2d 73, 76 (Utah Ct. App. 1991). The court must consider three

factors when determining alimony: “(1) the financial condition

and needs of the receiving spouse, (2) the ability of the receiving

spouse to produce sufficient income for him- or herself, and

(3) the ability of the responding spouse to provide support.” Id.

A. Lynessa’s Monthly Expenses

¶30 Loren challenges the following three expenses identified

in Lynessa’s financial declaration: (1) a retirement account

contribution, (2) a car loan, and (3) health insurance. He argues

that these were not “actual expenses” or needs because Lynessa

testified they were anticipated expenses rather than what she

was presently paying.

¶31 An award of alimony is intended to help the parties

“maintain the standard of living established over the course of

the marriage rather than the amount that is actually being

spent.” Woolums v. Woolums, 2013 UT App 232, ¶ 9, 312 P.3d 939.

We have previously defined “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.” Howell v. Howell, 806 P.2d 1209, 1211 (Utah Ct.

App. 1991) (citation and internal quotation marks omitted). This

court has therefore “disavowed the notion that ‘standard of

living is determined by actual expenses alone.’” Woolums, 2013

UT App 232, ¶ 9 (quoting Howell, 806 P.2d at 1212). Actual

expenses “may be necessarily lower than needed to maintain an

appropriate standard of living for various reasons, including,

possibly, lack of income.” Howell, 806 P.2d at 1212. It necessarily

follows that if the court determines the receiving spouse’s actual

and anticipated needs are reasonable, that they are consistent

with the standard of living enjoyed during the marriage, and

that the paying spouse can afford to cover the shortfall of those

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needs, then the alimony award should be in an amount to

accommodate that shortfall.

¶32 Here, the anticipated expenses of the car loan and health

insurance were reasonable anticipated expenses for basic needs

that were established as standard during the marriage. Loren,

Lynessa, and Tyler each testified at trial that Lynessa had a car

during the marriage, but that it broke down and she was

without a car for two years leading up to the trial. Lynessa

testified that she would have purchased a car to replace the old

one if she had been receiving the alimony she was entitled to.

Therefore, it was reasonable for the court to include the car loan

in Lynessa’s monthly expenses.

¶33 The district court likewise did not abuse its discretion by

including health insurance costs in Lynessa’s monthly expenses.

Lynessa testified that she suffered from medical conditions both

during and after the marriage for which she took medication and

was under medical care. There was no suggestion at trial that her

medical needs were not provided for during the marriage, and

the original divorce decree indicated that Loren was providing

some medical insurance at the time the marriage dissolved. 2 And

although Lynessa was not asked at trial whether the parties had

health insurance during the marriage, Loren was aware, prior to

trial, that Lynessa identified health insurance as an expense in

her financial declaration. He therefore left the issue for the

district court to determine, using its broad discretion based on

the evidence before it. See Woolums, 2013 UT App 232, ¶ 10

(holding “[t]he district court’s evaluation of and reliance on

Wife’s testimony, along with its own determinations of the

reasonableness of the claimed expenses, fell squarely within its

2. Our review of the record shows that the original divorce

decree ordered Loren to continue to pay for the children’s health

insurance.

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broad discretion to determine an appropriate alimony award”).

Given the medical conditions Lynessa testified she suffered from

both during and after the marriage, and that health insurance

was at least provided for the children during the marriage, as

well as Loren’s failure to contest whether health insurance for

Lynessa was established during the marriage, we conclude there

was no abuse of discretion in considering anticipated health

insurance costs in her monthly expenses.

¶34 As to Loren’s challenge regarding the retirement account,

we agree that the district court exceeded the scope of its

discretion when it included among Lynessa’s necessary monthly

expenses $200 per month for retirement account contributions.

¶35 Utah Code section 30-3-5 allows the district court to

address the needs of a spouse that did not exist during the

marriage or at the time the divorce decree was entered only if

“the court finds extenuating circumstances that justify that

action.” Utah Code Ann. § 30-3-5(h)(ii) (LexisNexis Supp. 2017).

This court has previously explained that retirement accounts

“may not ordinarily be factored into an alimony determination,”

unless “funds for post-divorce . . . 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.” Bakanowski v. Bakanowski, 2003 UT

App 357, ¶ 16, 80 P.3d 153. If this circumstance exists and the

district court determines that the retirement account “should be

taken into account as part of the needs analysis, then the court’s

findings must be even more detailed than those in a standard

needs analysis,” because this award “is the exception, rather

than the rule.” Id.; see also Rudman v. Rudman, 812 P.2d 73, 76 n.1

(Utah Ct. App. 1991) (explaining that in cases “where the

evidence is severely conflicted, it is essential that the reviewing

court clearly understand the findings on which the [district]

court bases its conclusions”).

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¶36 Here, the district court made no findings related to

Lynessa’s claim for $200 of monthly retirement contribution. At

best, the order noted, “[Lynessa] included expenses that were

reasonable, such as a car, insurance and health insurance, even

though she does not presently have them but would have them

if [Loren] paid support.” Though this statement could be read as

a non-exhaustive list of reasonable expenses not yet incurred,

failure to provide any factual findings related to the claimed

retirement account expense is a violation of our explicit

requirement that the court’s findings related to such accounts

“must be even more detailed than those in a standard needs

analysis.” See Bakanowski, 2003 UT App 357, ¶ 16. In addition,

our review of the record shows that the initial divorce decree

specifically stated, “Retirement and Savings. Neither party has a

pension nor a profit sharing plan through his or her place of

employment or otherwise.” The district court relied on this

divorce decree for certain of its findings of facts and it was

therefore an abuse of discretion to consider the anticipated

retirement fund contribution in Lynessa’s monthly expenses.

¶37 We remand to the district court for the limited purpose of

removing the $200 retirement fund contribution from Lynessa’s

necessary monthly expenses and to adjust the award of alimony

accordingly.

B. Awarding Alimony and Child Support

¶38 Loren contends the district court abused its discretion in

awarding Lynessa $1,900 for alimony because she was also

receiving approximately $715 per month in child support, and

these combined awards exceed her stated monthly expenses. We

disagree.

¶39 Child support is a “basic and unalienable right . . . vested

in the minor.” See Reick v. Reick, 652 P.2d 916, 917 (Utah 1982)

(per curiam). This court has previously explained that “[i]t is

typically best practice for [district] courts to analyze alimony

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without factoring in child support obligations.” Dobson v.

Dobson, 2012 UT App 373, ¶ 11, 294 P.3d 591. But we have held

that “treating child support payments as the recipient spouse’s

income is permissible where the recipient combine[s] her

expenses with those of the children in her financial declaration.”

Roberts v. Roberts, 2014 UT App 211, ¶ 17, 335 P.3d 378 (alteration

in original) (citation and internal quotation marks omitted).

“[W]hen at least some of the children’s expenses seem to have

been factored into the alimony calculation already” then the

district court must explain its decision not to include child

support payments as income. See id.

¶40 Here, the district court specifically removed “the amount

spent on adult children [and] school fees which can be waived”

from Lynessa’s monthly expenses. Loren has not directed us to

anything within Lynessa’s financial declaration that could be

considered additional expenses spent solely on the minor child

still residing with Lynessa. Without providing a reasoned

analysis with respect to awarding child support in addition to

alimony, Loren has failed to carry his burden of persuasion on

appeal with respect to this issue. See Bank of America v. Adamson,

2017 UT 2, ¶¶ 12–13, 391 P.3d 196 (providing that a party who

“fails to devote adequate attention to an issue is almost certainly

going to fail to meet its burden of persuasion” on appeal).

¶41 The court also explained that “although her current living

style does not match what she enjoyed during the marriage,

there are insufficient funds after the divorce . . . between the

parties to allow her to live that lifestyle.” The court appears to

imply that the award of alimony could have been higher if

Loren’s income was similar to what he earned during the

marriage.

¶42 The district court did not abuse its discretion when it

awarded alimony to Lynessa in addition to child support.

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III. Attorney Fees

¶43 Loren contends the district court erred in awarding

attorney fees to Lynessa without “an appropriate consideration

of the relevant attorney fees factors.” We disagree.

¶44 In the context of divorce, “[t]he decision to award

attorney fees and the amount thereof rests primarily in the

sound discretion of the [district] court,” but the court must “base

the award on evidence of the receiving spouse’s financial need,

the payor spouse’s ability to pay, and the reasonableness of the

requested fees.” Childs v. Childs, 967 P.2d 942, 947 (Utah Ct. App.

1998); see also Utah Code Ann. § 30-3-3(1) (LexisNexis 2013)

(providing that in an action to modify child support or alimony,

“the court may order a party to pay the costs, attorney fees, and

witness fees . . . of the other party to enable the other party to

prosecute or defend the action”).

¶45 Here, the district court considered the required attorney

fees factors when awarding fees to Lynessa. The court found that

because Loren “has been able to get support and income

modified from the [divorce] decree,” and “since [he] has not

been paying adequate alimony or child support, [Lynessa]

cannot afford attorney fees but [Loren] has the ability to pay

them.” 3 Loren’s ability to pay was also based on the income

imputed to him.

3. The court also commented that Loren’s “hiding of income and

failure to be forthcoming with complete records makes it

inequitable to award him attorney[] fees” and that those same

factors would allow an award of attorney fees to Lynessa “under

the bad faith provision” of Utah Code section 78B-5-825. We

agree with Loren that this was an incorrect application of section

78B-5-825, which allows a court to award attorney fees to the

prevailing party “if the court determines that the action or

(continued…)

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¶46 The district court did not abuse its discretion in awarding

attorney fees to Lynessa. 4

¶47 On appeal, Lynessa has requested that she be awarded

attorney fees incurred in her defense of this appeal. “Generally,

when the [district] court awards fees in a domestic action to the

party who then substantially prevails on appeal, fees will also be

awarded to that party on appeal.” Osguthorpe v. Osguthorpe, 872

(…continued)

defense to the action was without merit or not brought or

asserted in good faith.” Utah Code Ann. § 78B-5-825(1)

(LexisNexis 2012). First, it is unclear who the prevailing party is

in this situation. Although Loren was unable to persuade the

court that he was making only $11 per hour, he successfully

petitioned it to reduce his obligations of alimony and child

support. Second, because of this success, we cannot agree that

the action was without merit or brought in bad faith. Though we

do not condone Loren’s failure to provide adequate financial

documents to support his alleged income, we do not agree with

the court that Lynessa deserves attorney fees under the bad faith

provision of the attorney fees statute. But this analysis has no

effect on the district court’s award of attorney fees under Utah

Code section 30-3-3.

4. The court awarded attorney fees in the amount of $16,403.44

“as stated in Petitioner’s Affidavit of Attorney’s Fees.” This

affidavit provided the various billing rates of attorneys from two

law firms, and provided the total number of hours each firm

spent on Lynessa’s case; the affidavit did not identify which

attorneys spent what amount of time on the case in calculating

the final amount. But Loren has not argued this was error and

therefore we will not address whether it was an abuse of

discretion for the district court to rely solely on this affidavit

when determining the amount of attorney fees.

20160507-CA 17 2018 UT App 19

Anderson v. Anderson

P.2d 1057, 1059 (Utah Ct. App. 1994) (citation and internal

quotation marks omitted); see also Oliekan v. Oliekan, 2006 UT

App 405, ¶ 32, 147 P.3d 464 (“[W]e will generally award attorney

fees on appeal to the prevailing party if the [district] court

awarded attorney fees and the receiving party prevails on the

main issues on appeal.”). Because the district court properly

awarded attorney fees to Lynessa in the action below and

because she has substantially prevailed on appeal, we

accordingly award her attorney fees on appeal and remand to

the district court to calculate the reasonable amount of fees and

costs she incurred in connection with this appeal. See Osguthorpe,

872 P.2d at 1059.

CONCLUSION

¶48 We conclude the district court did not abuse its discretion

when it included anticipated costs for health insurance and car

loan payments in Lynessa’s necessary monthly expenses because

they were reasonable expenses within the marriage standard of

living and that she would have continued to incur if Loren had

consistently paid her alimony and child support. The court also

did not abuse its discretion in awarding child support in

addition to alimony because child support is a vested right of the

child and the court removed costs from Lynessa’s monthly

expenses that related specifically to the children. The district

court also did not abuse its discretion in awarding attorney fees

to Lynessa under Utah Code section 30-3-3 because it gave

appropriate consideration to the relevant attorney fees factors.

¶49 We further conclude the district court abused its

discretion when it included retirement account contributions in

Lynessa’s necessary monthly expenses because contribution to

such an account did not exist during the marriage.

¶50 Accordingly, we remand to the district court for the

removal of retirement account contribution expenses from the

20160507-CA 18 2018 UT App 19

Anderson v. Anderson

alimony calculation and to calculate reasonable attorney fees

incurred by Lynessa on appeal.

20160507-CA 19 2018 UT App 19