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Historically, confusion and conflict have existed in Utah law regarding alimony. In order to try to clarify this area of law, the Utah Court of Appeals and the legislature have worked to
establish a predictable set of criteria. The Legislature has amended Section 30-3-5(7) of the Utah Code on several occasions and both the Utah Supreme Court and the Utah Court of Appeals
have sought to resolve the conflicts and develop a systematic approach to the decision making process. This effort has been built on the approach articulated in December of 1994 when the
Court of Appeals published the decision of Crompton v. Crompton, 888 P.2d 686 (Utah Ct. App. 1994). In that case, the court stated:
Because the needs of the parties to a marriage are defined by the parties’ own decisions concerning their standard of living, an alimony award is highly fact specific and dependent on
the parties themselves. For this reason, trial courts are given broad discretion to determine the standard of living that existed during the marriage in an effort to equalize the
parties’ post divorce status.
Id. at 689 (emphasis added).
While this language focused on the standard of living of Mr. and Mrs. Crompton, this declaration formed the basis for a series of later decisions in which the appellate courts have
articulated specific criteria which must be examined by a trial court. In decisions since Crompton, the courts have created a consistent body of law focusing on the sound exercise
of discretion by the trial court in following this rationale.
The criteria examined in Crompton were previously articulated in Jones v. Jones, 700 P.2d 1072 (Utah 1985); that is, the trial court must consider the following:
1.The needs of the recipient spouse to maintain as nearly as possible the standard of living being enjoyed during the marriage;
2.The ability of the recipient spouse to produce income for himself or herself to meet that need; and
3.The ability of the payor spouse to pay alimony.
See Id. at 1075. By directing the trial court to apply these criteria in light of the living standards established by the parties themselves, the Court of Appeals established a
basis for rationalizing a series of conflicting prior decisions.
This basic declaration has been fleshed out in a series of decisions building on Crompton. In each decision the trial courts' actions have been reviewed to determine if they
carefully examine the living standard which was enjoyed by the parties during the marriage and then made an alimony award by application of the criteria to the particular facts in the
case. As the Court of Appeals noted in Crompton, that living standard will vary from one marital arrangement to another as do the sources of income which the parties used to meet
those needs.
The Court of Appeals stated in Crompton that it would be inappropriate for an appellate court to tie the hands of a trial court by confining its consideration of income in every
case to only that which came from a 40 hour per week source.
A trial court must be able to consider all sources of income that were used by the parties during their marriage to meet their self-defined needs, from whatever source-overtime, second
job, self-employment, etc., as well as unearned income.
Crompton, 888 P.2d at 689.
In reviewing the income factors considered by the trial court against the criteria which must be examined, the Court of Appeals held that it was not clearly erroneous for a trial court to
conclude that the husband's past work habits would continue into the future, that is, working overtime, since he had consistently done so. The trial court was then found to have properly
determined the standard of living and the husband's ability to pay in light of that income.
While the specific focus of the Court in Crompton was the income available to the parties to meet the needs of each of them after the divorce, by articulating that trial courts must focus
on the facts of each case to find the standard of living established by the parties themselves during the marriage, the Court set a basis on which later decisions could create a body of
law that would clarify application of the alimony award criteria for the trial courts and counsel.
The next decision in this structure was Breinholt v. Breinholt, 905 P.2d 877 (Utah Ct. App. 1995), where the Court of Appeals ruled that, in determining alimony, the trial court did
not make sufficient findings on the financial needs of each of the parties. The court stated that such findings are necessary in determining both the standard of living and, in the case
of the payor, the ability to pay. The trial court was ordered to examine and make specific findings as to the expenses paid by an employed party's business. This was found to be essential
in order to correctly determine that party's ability to provide support. As the Court of Appeals declared:
If plaintiff expenses a large amount of personal items from the business, this will have the effect of lowering the business's profitability and hence plaintiff's ability to provide
support. Thus, the personal expenditures must be added back into the business profits, providing the Court with a truer picture of plaintiff's financial abilities and augmenting
plaintiff's ability to provide defendant with alimony support.
Id. at 880.
It must be noted that this finding will actually affect not only the governing criteria for alimony, it will impact the valuation of the property. When the payor has personal expenses paid
by the business, that raises his or her standard of living without raising income. When the trial court follows the direction to adjust the business expenses, it must adjust both the
payor's expenses which must now be paid by the payor (as part of his standard of living) as well as the income available from the business. If the value of the business is a factor in the
division of marital property, the adjustment must also be carried through to the valuation adjustments affected by the income adjustments.
The Court of Appeals went on in Breinholt to rule that the trial court's refusal to include income from a second job and unearned income as income available from which to pay alimony was error. As the Court of Appeals stated,
when determining an alimony award, "it is appropriate and necessary for a trial court to consider all sources of income that were used by the parties during their marriage to meet
their self-defined needs, from whatever source- overtime, second job, self employment, etc., as well as unearned income.”
See Breinholt v. Breinholt, 905 P.2d 877, 880 (Utah Ct. App. 1995) (quoting Crompton v. Crompton, 888 P.2d 686, 690 (Utah Ct. App. 1994)). Sending the case back to the trial
court, the Court of Appeals ordered it to consider all income after holding the trial court abused its discretion by refusing to consider the plaintiff's income from a second job and the
unearned income in calculating alimony. A true finding and determination of the ability to pay requires a trial court to inquire into all sources of income. This requires the trial court
to include an analysis of the payor's personal expenses, and to determine how many of those were paid by his or her business. This is part of the Crompton analysis, that is, how the parties managed their own income and expenditures.
This decision was followed by Willey v. Willey, 914 P.2d 1149 (Utah Ct. App. 1996) when, for the second time, the Court of Appeals reviewed the trial court's findings regarding the
imputation of income to Ms. Willey. The trial court considered testimony from a vocational counselor and entered findings of fact imputing monthly income to her based on the testimony
received. This addressed the second factor of the Jones test, the recipient's ability to provide income for himself or herself. The Court of Appeals noted that because the trial court
made detailed findings as to the proper imputation of income to Ms. Willey based on evidence presented, the trial court had not abused its discretion. However, the Court of Appeals then
went on to examine the findings of the trial court dealing with the reasonable financial needs of each of the parties. The court found that whereas Ms. Willey claimed a need for certain
expenses, when these were reduced by the trial court without making findings as to why they should be reduced, it was error. The court noted that in its first Willey decision, Willey
v. Willey, 866 P.2d 547 (Utah Ct. App. 1993), it had ruled that it was necessary to examine the needs of the payor as part of determining his ability to pay. In other words, the needs
of each of the parties must be determined as part of the alimony formula and these needs must be based on the lifestyle of the parties themselves.
The Court of Appeals then went on to make a specific award of alimony to correct what it felt were the errors made by the trial court since the case had been before it previously, and it
wanted to end the litigation. However, the Utah Supreme Court reversed that part of the decision and ruled that the trial court, not the Court of Appeals, must make the findings of fact
upon which an alimony award should be made. See Willey v. Willey, 951 P.2d 226, 232 (Utah 1997).
It is interesting to note the disagreement between Justice Durham (concurring) and Justice Russon in Willey over the record and evidence regarding the medical expense issue. What clearly emerges from the three opinions that comprise this decision is that the Supreme Court has accepted the idea of a fact sensitive approach to resolving alimony decisions. What the Supreme Court added is that it is the trial court, not the Court of Appeals, that must make these determinations.
In Endrody v. Endrody, 914 P.2d 1166 (Utah Ct. App. 1996), the court held that the trial court appropriately looked at the husband's present and not his historical ability to
generate income, when the evidence clearly established he could not earn his historical income. The analysis upheld in this decision was an application of the rules restated in full in
Crompton, that is, examining each of the governing criteria and making specific factual findings.
Endrody was followed in Griffith v. Griffith, 959 P.2d 1015 (Utah Ct. App. 1998), where the Court of Appeals reviewed a trial court's determination as to what was the
appropriate income determination where the husband had, before the divorce, regularly supplemented the couple's income by working side jobs in addition to his regular job. By the time of
trial, that extra employment had ceased based on increased needs of his full-time employer and his promotion within the company. The trial court found that, not only had the husband
stopped performing the side jobs, but he worked 50 hours a week at a demanding job, was not underemployed, was appropriately compensated by his full time employer, the extra work he had
undertaken was to keep the family business viable and there was no evidence of voluntary unemployment. Accordingly, the Court of Appeals upheld the trial court's determination of present
income versus historical income based on the careful findings of the trial court tested against the appropriate criteria. Turning then to examining the other two factors, that is, the
financial conditions and needs of the recipient spouse and the recipient spouse's ability to produce income, the Utah Court of Appeals found the trial court had appropriately considered
and entered appropriate findings on each and affirmed the rulings.
Griffith, like Willey, was accepted for further review by the Utah Supreme Court. In Griffith v. Griffith, 985 P.2d 255 (Utah 1999), the Supreme Court affirmed the
income analysis of both the trial court and the court of appeals. This analysis was also used and affirmed in Reese v. Reese, 984 P.2d 987 (Utah 1999).
After Griffith, five decisions by the Court of Appeals were then issued at the rate of one a month. In each decision, this careful fact finding approach was expanded to accommodate
changes made by the legislature to the alimony statutes, and it became clear (or perhaps clearer), that rigorous fact finding, and the basic criteria for an initial award of alimony were
also relevant to the modification of an award of alimony in connection with post-decree changes of circumstances.
In October of 1998, the Court of Appeals released its decision in Childs v. Childs, 967 P.2d 942 (Utah Ct. App. 1998). In examining the wife's challenge to the alimony award on the
basis that it was insufficient, the Court of Appeals stated,
Trial courts have broad discretion in making alimony awards. See Haumont v. Haumont, 793 P.2d 421, 423 (Utah Ct. App. 1990). Therefore, we will not disturb a trial court's
alimony award so long as the trial court exercised its discretion within the appropriate legal standards, see id., and "supported its decision with adequate findings and
conclusions...” Naranjo v. Naranjo, 751 P.2d1144, 1147 (Utah Ct. App. 1998) (citations omitted).
Id. at 946. The Court then went on to note that the legislature had added additional factors to those previously articulated by the Utah appellate courts:
Section 30-3-5(7)(a) of the Utah Code codifies four factors trial courts must consider in determining alimony. Trial courts must consider:
(i) the financial condition and needs of the recipient spouse;
(ii) the recipient's earning capacity or ability to produce income;
(iii) the ability of the payor spouse to provide support; and
(iv) the length of the marriage.
Utah Code Ann. Section 30-3-5(7)(a) (i)-(iv) (Supp. 1998). Although not required, the court may consider fault in determining alimony. See id. Section 30-3-5(7)(b) (Supp. 1998). If these
factors have been considered, we will not disturb the trial court's alimony award unless such a serious inequity has resulted as to manifest a clear abuse of discretion. Watson v. Watson,
837 P.2d 1, 3 (Utah Ct. App. 1992) (Citations omitted).
Id. (footnote omitted).
The Court of Appeals found that the trial court had entered findings which clearly demonstrated that all of the required factors had been considered in setting the alimony award and
affirmed. The court specifically rejected the contention of the recipient spouse that section 30-3-5, which provides that a trial court may award alimony for a period equal to the length
of the marriage, must make an award for the same duration as was the marriage.
In November of 1998, the Court released its decision in Hill v. Hill, 968 P.2d 866 (Utah Ct. App. 1998). The specific question before the Court was the definition of co-habitation
for termination of alimony. The Court of Appeals affirmed the trial court's rejection of the definition contained within the Co-Habitation Abuse Act and held that simply giving birth to
an out-of-wedlock child did not establish co-habitation. The Court of Appeals noted that co-habitation had to be shown by the factors previously articulated in appellate court decisions
and the facts found by the trial court did not establish that this had occurred in this case. While this decision focuses on the statutory definition the analysis focused on the findings
in affirming the trial court.
Closing out the year, the Court of Appeals published Wilde v. Wilde, 969 P.2d 438 (Utah Ct. App. 1998). This decision involved a review of a petition to modify an alimony award.
First, the court affirmed the trial court's decision that a former wife's development of rheumatoid arthritis following dissolution of the marriage was a substantial material change of
circumstances not contemplated when the decree was entered, justifying a reexamination of the alimony award. The court then examined the effect of changes in the alimony statute. In
Footnote 1 of the Wilde decision, the Court of Appeals observed that the duration of alimony could exceed the duration of a marriage only on a showing of extenuating circumstances if alimony was to address needs of the recipient that did not exist at the time the decree was entered. As the trial court had not made any finding regarding extenuating circumstances, the matter was remanded for a finding regarding whether or not extenuating circumstances existed. Because the alimony statute has been changed numerous times in the last few years, the court went on to rule that the law that was in effect on the date of the filing of the original petition was the law that would govern examination of this petition for modification. See Id. at 443. Following its prior ruling as to a need for specific findings, the matter was then remanded to the trial court for entry of specific findings to determine the amount and duration of additional alimony to be paid to the defendant based on the substantial material change in circumstances not foreseen at the time of the entry of the decree. See Id. at 445.
As part of this decision, the Court of Appeals ruled that a petition to amend an alimony award must be filed before the last alimony payment is made. Thus, the "actual date the last
required payment is made controls, not the date upon which alimony is scheduled to terminate." Id. at 443.1
The fourth decision, Moon v. Moon, 973 P.2d 431 (Utah Ct. App. 1999) was released in January of 1999. A major part of this decision deals with clarifying the question of what should
be done in proceedings considering a petition to modify and what should be done under an order to show cause. The discussion sorted out the confusion which occurred when they were mixed
and not clearly defined. The specific, beneficial part of this decision is the extensive examination of the determination of the payor's income. The court declared that the change of a
compensation package by an employer should not simply be accepted based on its face value, but rather, the actual effect must be determined. The trial court entered findings of fact,
which the Court of Appeals held were sufficient to support the ruling that the payor's obligation would be based on all of his income from every source allocated to him by his employer.
An examination of all of the factors, which should be considered based on Utah law in examining a payor's ability to provide support is contained within Footnote 8 on page 438 of the Moon
decision. The court noted that the payor did not ever provide information that would allow a complete assessment of his income and therefore remanded for a determination of his actual
income from all sources and the entry of a judgment that would effect the ruling that he had failed to make the alimony payments that he had been ordered to pay.
The final decision in this series of opinions provides an excellent example of consideration of the governing criteria and the application of the revised provisions of section 30-3-5 of
the Utah Code. In Rehn v. Rehn, 974 P.2d 306 (Utah Ct. App. 1999), the court, in February of 1999, declared:
The court must state that "the calculation of monthly expenses is reasonable" and must explain how it arrived at the monthly amount, or at least from the record, allow us to
make this determination ourselves.
Id. at 310.
The trial court, then, not only must examine the income carefully and make findings as to the fact that it has considered all income from every source as previously discussed, it must do
the same in determining needs and standard of living so that those findings can be reviewed if and as appropriate by the Court of Appeals.
Then, in examining the trial court's findings and decision in the case before it, the Court of Appeals stated:
The trial court's findings specify Ms. Rehn's established monthly income, and in doing so, consider the "historical roles" both parties played in the marriage - that is, Ms.
Rehn was the primary caretaker of the parties' minor children. Moreover, because it 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, see Fletcher v. Fletcher, 615 P.2d 1218, 1223 (Utah 1980), we hold the trial court did not err in imputing lesser earnings to
Ms. Rehn.
Id. at 310-11.
The court ruled that there must be specific findings as to the obligor's needs and expenditures for such items as housing, payment of debts and other living expenses. After examining all
of these factors, the Court of Appeals held that a permanent alimony award, which had been made by the trial court, must be remanded for further findings to deal with the question of
extending alimony longer than the marriage as there was no finding as to the specific extenuating circumstances that would justify such an award.
Two more decisions have made it clear that the criteria relevant to the initial alimony determination must also be considered either when temporary alimony is sought pre-decree, or when a
modification of the award is sought post-decree.
On July 1, 1999, the Court of Appeals released its decision in Williamson v. Williamson, 983 P.2d 1103 (Utah Ct. App. 1999) in which the court considered a trial court determination
to terminate alimony prior to the terms set in the original decree of divorce. The court articulated that
before the trial court can modify a divorce decree, it must find that there has been a "substantial material change of circumstances not foreseeable at the time of the
divorce." Utah Code Ann. ¤ 30-3-5(7) (g) (i) (1998). Once that finding has been made, the court must then consider "at least the following factors in determining alimony:
(i) the financial condition and needs of the recipient spouse; (ii) the recipient's earning capacity or ability to produce income; (iii) the ability of the payor spouse to provide
support; and (iv) the length of the marriage." Utah Code Ann. ¤ 30-3-5 (7) (a) (1998). These factors apply not only to an initial award of alimony, but also to a redetermination
of alimony during a modification proceeding. See Christiansen v. Christiansen, 667 P.2d 592 (Utah 1983). The trial court must then make findings of fact based on these factors.
See Breinholt v. Breinholt, 905 P.2d 877, 880 (Utah Ct. App. 1995).
Id. at 1105 (footnote omitted).
By means of this declaration the Utah Court of Appeals has clarified the procedure that must be followed on any change of circumstance petition in regard to alimony. It is a two step
procedure. The first step is to determine whether or not there has been any significant or substantial material change of circumstance not foreseen at the time of the entry of the decree.
If that is found to exist, then the same fact sensitive criteria utilized to award alimony are to be effected to determine what adjustments must be made in the alimony award.
In the Williamson case itself there was no challenge by the appellant to the determination that a substantial, material change of circumstances not foreseen at the time of the entry of the decree had occurred, but there was a challenge to the factual basis upon which the decision and determination of alimony and reduction of child support had been made by the trial court. The challenge was upheld, and on remand, the trial court was urged to carefully consider whether or not it really should terminate alimony and pointed out that prior to terminating alimony the trial court must articulate a basis for doing so including being persuaded that the recipient spouse will be able to support himself or herself at a standard of living to which he or she was accustomed during the parties' marriage or that the payor spouse is no longer able to pay. See Id. at 1106.
At the end of July, 1999, the court issued its decision in Thomas v. Thomas, 987 P.2d 603, (Utah Ct. App. 1999) which it then withdrew and reissued on August 12, 1999. The Court of
Appeals determined that appropriate factual findings had been made to support a trial court's determination to award temporary alimony that ended when the decree of divorce was entered.
The trial court was found to have appropriately considered each of the required criteria and entered appropriate findings to support the decision that the recipient spouse could support
herself after receiving temporary transitional alimony which served as transitional alimony to assist her in making the transition from the marriage to living separately in light of her
earning ability, age, health, employment and financial resources.
The Utah legislature has also continued its involvement in delineating the alimony criteria, some of which have been enumerated above. In 1999 the legislature added still additional
factors that a trial court must consider:
(v) whether the recipient spouse has custody of minor children requiring support;
(vi) whether the recipient spouse worked in a business owned or operated by the payor spouse; and
(vii) whether the recipient spouse directly contributed to any increase in the payor spouse's skill by paying for education received by the payor spouse or allowing the payor
spouse to attend school during the marriage.
Utah Code Ann. ¤ 30-3-5(7)(a)(1999).
In addition for tax purposes, section 30-3-5(8) was amended to provide that alimony automatically terminates upon the remarriage or death of a former spouse. The addition of "or
death" of a former spouse makes clear that Utah law meets the factual requirements of Section 71 of the Internal Revenue Code that alimony terminate on death even if that is not
stated in a decree of divorce.
In sum, the Utah Court of Appeals in an approach approved by the Utah Supreme Court has established a legal basis of requiring the trial court to make extensive detailed findings in each
area that must be considered in making an alimony award. Once the trial court does so, unless the appellate court finds an abuse of discretion, the award will be affirmed. In establishing
this rule, the court appears to have articulated a set of standards for making alimony awards based on the fact sensitive basis of determining the living standards and income of the
parties as established by the parties themselves during their marriage. To effect this rule, the courts are establishing a body of law that utilizes the criteria established by the
parties themselves in the way they managed their own financial affairs to determine alimony. As effected to date, this is creating a body of law which forms a reasonably predictable basis
upon which the trial courts and attorneys can proceed.
1Undiscussed is whether or not this ruling conflicts with the decisions of the Utah Supreme Court in Georgedes v. Georgedes, 627 P.2d 44 (Utah 1981) and the prior decision in Kinsman v.
Kinsman, 748 P.2d 210 (Utah Ct. App. 1988).
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