2017 UT App 114

THE UTAH COURT OF APPEALS

PAUL R. SAUER II,

Appellant,

v.

PAULINE L. SAUER,

Appellee.

Opinion

No. 20150952-CA

Filed July 13, 2017

Third District Court, Salt Lake Department

The Honorable Su J. Chon

No. 134902556

David Maddox, Attorney for Appellant

Pauline L. Sauer, Appellee Pro Se

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES J. FREDERIC VOROS JR. and JILL M. POHLMAN

concurred.

CHRISTIANSEN, Judge:

¶1 Paul R. Sauer II and Pauline L. Sauer married in 1987 and 

separated in 2004. Paul filed for divorce in 2013. After a bench 

trial, the court issued a decree of divorce in November 2015, in 

which it awarded Pauline half of Paul’s retirement benefits and 

alimony of $576 per month and ordered Pauline to reimburse 

Paul approximately $1,438 for moving expenses and utility bills. 

Paul appeals, contending that the trial court abused its discretion 

in weighing the evidence, by imputing Pauline’s needs, and by 

entering conclusions not supported by the evidence. We affirm.

¶2 Paul first contends that the trial court “abused its 

discretion when it stated that [he] failed to meet his burden of 

proof when offering evidence relating to debt and property 
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distribution.” Paul notes that the standard of proof applicable to 

civil actions is the preponderance of the evidence. See Morris v. 

Farmers Home Mutual Ins. Co., 500 P.2d 505, 507 (Utah 1972). Paul 

then asserts that because he “provided copious amounts of 

evidence in testimony and exhibits” that “went un-refuted by 

[Pauline],” the court abused its discretion when it determined 

that he had not met his burden of proof. In essence, Paul’s 

argument is that because he presented uncontested evidence 

regarding the value of certain items, the trial court was required 

to find that evidence credible.

¶3 At trial, Paul entered into evidence a list of items he 

claimed Pauline had lost. The list included his estimates as to the 

value of each item. Pauline denied losing the items and did not 

present competing evidence of those items’ value.

¶4 The court rejected Paul’s estimates of the values of the 

items because he “did not testify that he had any experience in 

evaluation or training in that area.” But the court also found that 

Paul had not demonstrated that Pauline was responsible for 

losing the items. Specifically, the court explained it was troubled 

that, although Paul “voluntarily stored” at the homes of 

acquaintances some of the items that later went missing, Paul 

nevertheless sought “to hold [Pauline] responsible for the loss of 

all of the personal property” on the list. The court also noted that 

Paul had never reported the loss of any property to law 

enforcement. The court ultimately found Paul’s testimony “not 

credible as to why he would voluntarily store his property at 

other people’s homes and then blame the resulting loss on 

[Pauline].”

¶5 Thus, the record shows that the trial court considered

testimony by both Paul and Pauline before finding that Paul had 

failed to demonstrate that Pauline caused the loss of the listed

items. Paul does not challenge that finding. Because the court 

rejected Paul’s claim that Pauline was responsible for the loss of 
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20150952-CA 3 2017 UT App 114

the items, it is irrelevant whether the court correctly valued 

them.

1

¶6 Paul also asserts that the court’s “pattern of disbelief” 

regarding his testimony and the evidence he proffered “is a clear 

abuse of discretion.” But we give great deference to a trial court’s 

determinations of credibility “based on the presumption that the 

trial judge, having personally observed the quality of the 

evidence, the tenor of the proceedings, and the demeanor of the 

parties, is in a better position to perceive the subtleties at issue 

than we can looking only at the cold record.” See State v. 

Calliham, 2002 UT 87, ¶ 20, 57 P.3d 220. Consequently, in “all 

actions tried upon the facts without a jury, findings of fact shall 

not be set aside unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the credibility 

of the witnesses.” Hale v. Big H Constr. Inc., 2012 UT App 283, 

¶ 9, 288 P.3d 1046 (quoting Utah R. Civ. P. 52(a) (2012)) 

(brackets, ellipses, and internal quotation marks omitted). A 

court may well find that several pieces of evidence presented by 

a single party are not credible; such a “pattern of disbelief” does 

 

1. Similarly, the court rejected Paul’s claim regarding the value 

of a truck. Paul claimed that the truck was worth $1,900 because 

he had received an offer to buy it for “$1,000 solely for the 

engine.” He also testified that he believed Pauline had “sold it to 

someone.” The court found that the only evidence of the truck’s 

value was the offer to buy it for $1,000 and consequently fixed its 

value at $1,000. But the court then found that there was no 

credible evidence “as to what happened to the truck” and 

therefore refused to treat it as sold. On appeal, Paul asserts that 

the trial court “found [his testimony] not credible because he did 

not provide the [Kelley Blue Book] valuation of the truck.” 

However, any dispute regarding the valuation of the truck is 

immaterial when the court did not find credible the claim that it 

had been sold.
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not, standing alone, prove clear error or otherwise constitute 

grounds for withdrawing the due regard we owe to the trial 

court. And, here, the trial court was not required to believe Paul 

simply because he presented more evidence than Pauline or 

because Pauline did not directly contradict his proffered 

testimony. See, e.g., Anderson v. State Farm Fire & Cas. Co., 583 

P.2d 101, 104 (Utah 1978) (“The testimony of a party . . . is not 

conclusive, even if it is not contradicted . . . . [The party’s] 

testimony is to be given such weight and credibility as the trier 

of fact finds reasonable under the circumstances.” (emphasis 

added)); Fullmer v. Fullmer, 2015 UT App 60, ¶ 25, 347 P.3d 14 

(“Determinations regarding the weight to be given to the 

testimony of witnesses, including expert witnesses, are within 

the province of the finder of fact, and we will not second guess a 

court’s decisions about evidentiary weight and credibility if 

there is a reasonable basis in the record to support them.”

(brackets, citation, and internal quotation marks omitted)).

¶7 Because the trial court found that Paul failed to prove that 

Pauline lost the items, his complaint that the trial court

improperly rejected his valuation of those items is irrelevant. 

Even if the trial court had found that Pauline lost the items, Paul 

has failed to demonstrate that the court’s credibility 

determination was clearly erroneous, and the nature of appellate 

review would require us to defer to that credibility

determination. See id.; see also Utah R. Civ. P. 52(a)(4) (“Findings 

of fact . . . must not be set aside unless clearly erroneous, and the 

reviewing court must give due regard to the trial court’s 

opportunity to judge the credibility of the witnesses.”); Dahl v. 

Dahl, 2015 UT 79, ¶ 121 (same, in the context of a marital 

property distribution).

¶8 Paul next contends that the trial court “abused its 

discretion when it awarded alimony, mistakenly relying on Dahl 

v. Dahl to reject the financial statement figures submitted by 

[Pauline] and impute its own on her behalf.” Specifically, Paul 

argues that the trial court was bound by Pauline’s testimony, or 
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20150952-CA 5 2017 UT App 114

lack thereof, regarding Pauline’s needs and her living expenses 

related to her housing costs. Paul asserts that, whereas “Dahl 

explicitly states that courts may impute figures [only] when 

there is insufficient evidence,” “[t]here is no lack of evidence in 

this case.”

¶9 Dahl did not hold, as Paul claims, that imputing an 

amount for an alimony factor is improper whenever evidence 

pertaining to that factor has been presented. Rather, Dahl

instructs that the court may impute a reasonable amount for an 

alimony factor when no credible evidence regarding that factor

has been presented. See Dahl, 2015 UT 79, ¶¶ 115–16 (noting that 

“there [was] insufficient evidence of one of the statutory alimony 

factors” due to a party’s “failure to provide credible evidence of 

her financial need,” and thus that the trial court could impute 

figures).

2 When a party obviously underestimates (as here) or 

overestimates (as is more common) his or her living expenses, 

the trial court is not limited to awarding either the reported 

amount or nothing. Instead, the dearth of credible evidence 

regarding a particular claim simply renders the quantum of 

evidence as to that claim insufficient.

¶10 Here, the trial court reasonably rejected Pauline’s estimate 

of $400 per month in housing expenses because, “[a]lthough 

[Pauline] lives in a trailer on a friend’s property, it is unknown 

 

2. In Dahl, the supreme court ultimately held that the district 

court’s failure to impute an amount for Ms. Dahl’s needs was 

within its discretion. Dahl v. Dahl, 2015 UT 79, ¶¶ 116–17. While 

the district court could have imputed an amount, it was not 

required to do so, because it “awarded Ms. Dahl over $1.5 

million in marital property” which was “sufficiently large . . . to 

support a comfortable standard of living.” Id. ¶ 116.
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how long a person can survive on the good nature of a friend.”3

In other words, the court found that Pauline’s estimate of her 

current housing expenses was not relevant to determining her 

reasonable housing needs going forward.

4 This finding left the

court without any specific evidence of Pauline’s housing needs 

that was both credible and relevant. Paul has not claimed, let 

alone shown, that the finding was clearly erroneous. See Dahl, 

2015 UT 79, ¶ 121; see also Anderson, 583 P.2d at 104. Once the 

court determined that there was no evidence that was both 

credible and relevant regarding Pauline’s reasonable housing 

needs, it was appropriate for the court to impute a reasonable

amount based on other evidence provided by the parties. See 

Dahl, 2015 UT 79, ¶ 116. The court found that Paul’s claimed 

housing need of $975 was reasonable and thus that “[i]t is 

reasonable to impute $975 as a rental payment for [Pauline].”

 

3. This determination makes conceptual sense. In the aftermath 

of a separation, a party may temporarily return to his or her

parents’ home, shelter with friends, or become homeless and 

thus incur no actual housing expenses. This does not require a 

court to find that the party has no reasonable housing expenses; 

rather, the court may consider what constitutes a reasonable 

rental or mortgage payment in the relevant area for housing 

similar to the housing previously shared by the parties. See Utah 

Code Ann. § 30-3-5(8)(e) (LexisNexis 2013) (“As a general rule, 

the court should look to the standard of living, existing at the 

time of separation, in determining alimony[.]”).

4. One of the purposes of alimony is to ensure that “divorcing 

spouses both retain sufficient assets to avoid becoming a public 

charge.” See Dahl, 2015 UT 79, ¶¶ 25, 111. Here, Pauline’s current 

housing expenses were essentially subsidized through the 

charity of a member of the public. It was therefore appropriate 

for the court to consider Pauline’s reasonable unsubsidized 

needs rather than her actual subsidized expenses.
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20150952-CA 7 2017 UT App 114

There was no claim or evidence that Paul’s and Pauline’s

reasonable housing needs differed or were wildly different than 

the housing they enjoyed during their marriage.

5 We therefore 

see no impropriety in the trial court’s decision to impute housing 

needs to Pauline in the same amount as Paul had claimed was 

reasonable for him.

¶11 A similar example may be found in the court’s overall 

findings with respect to the alimony factors. Ultimately, the 

court found that the evidence presented by Pauline (to the effect 

that her monthly income was $189 and her monthly housing 

expense was $400) was not credible relevant evidence of her 

reasonable earning capacity and living expenses, and it therefore 

imputed figures for both her income and housing ($1,517 and 

$975, respectively). Although Pauline’s financial declaration

reported that her only income was $189 per month in food 

stamps at the time of trial, the court took into account whether 

she could work and what she could reasonably earn. Based on 

Pauline’s prior earnings, the court imputed $1,517 per month of 

income to her. But if we were to adopt Paul’s reading of Dahl—

that any evidence regarding an alimony factor precludes 

imputation by the court—we would be forced to conclude that 

the trial court could not have imputed income to Pauline, 

because she presented evidence, albeit not credible evidence, 

that her income was $189. Dahl, as we read it, does not require 

this result.

 

5. Thus, failing to impute reasonable housing expenses for 

Pauline could have indicated that the district court did not 

comply with its charge in fashioning an alimony award; i.e., “to 

enable the receiving spouse to maintain as nearly as possible the 

standard of living enjoyed during the marriage and to prevent 

the spouse from becoming a public charge.” See Dahl, 2015 UT 

79, ¶ 111 (emphasis, citation, and internal quotation marks 

omitted).
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¶12 Paul also claims that Pauline “stated she was not asking 

for Alimony” and that “her financial declaration indicated no 

need for alimony.” Paul fails to provide citations to the record 

for either of these assertions. See Utah R. App. P. 24(a)(9) 

(requiring an appellant’s argument to contain “citations to 

the . . . parts of the record relied on”). Paul thus fails to refer us 

to any of the evidence he argues should have prevented the 

court from imputing Pauline’s financial figures. Our review of 

the parts of the record to which Paul might be referring indicates 

that Pauline rejected “alimony” only until she became aware of 

what the word meant. Once the word was explained, Pauline 

stated that, “as far as the money, I’m entitled to it. I’m entitled to 

something” and that “I just want what’s fair” because “I deserve 

it.” And Paul’s assertion that Pauline’s financial declaration

showed no need for alimony is belied by that very declaration: 

according to it, Pauline was unemployed, had no savings, 

received $189 per month in public assistance, and had monthly 

expenses totaling $615. We therefore cannot agree with Paul that 

the trial court’s finding that Pauline had unmet needs was 

clearly erroneous.

¶13 Paul’s third contention is that the trial court “abused its 

discretion when it made conclusions not found in the evidence.”

Specifically, he asserts that the court’s findings that he had been

the “sole source of family income” and that Pauline “had no 

access to marital funds during the separation of the parties” are 

“patently false.” He describes testimony by both himself and 

Pauline, but fails to provide record citations to that testimony or 

to provide record citations identifying the parts of the trial

court’s findings with which he takes issue. See Utah R. App. P. 

24(a)(9).

¶14 We will not take it upon ourselves to search the record for

testimony that might support Paul’s arguments. See, e.g., 

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 remedying the deficiencies of an appellant’s 
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brief.”). In any event, even if such testimony exists in the record, 

the trial court’s failure to credit it would have been within its 

discretion to determine the respective credibility of the parties. 

See, e.g., supra ¶ 6. Paul has done nothing to show that 

disbelieving any such evidence would have been clearly 

erroneous or an abuse of the court’s discretion. We reiterate that, 

following a bench trial, the court’s factual findings will be 

sustained on appeal unless the appellant demonstrates that they 

are “so lacking in support as to be against the clear weight of the 

evidence,” see 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 69, 99 

P.3d 801 (citation and internal quotation marks omitted); this 

deference naturally extends to determinations of credibility.

¶15 We conclude that Paul has not demonstrated clear error in 

the trial court’s findings. Accordingly, we affirm the trial court’s 

judgment.