2013 UT App 232

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

C HRISTINE W OOLUMS

,

Petitioner and Appellee,

v.

J ASON D OUGLAS W OOLUMS

, Respondent and Appellant.

Opinion

No. 20120591

‐ CA

Filed September 26, 2013

First District, Brigham City Department

The Honorable Ben H. Hadfield

No. 104100363

Daniel R. Cragun, J. Jarom Bishop, Ryan J. Stanger,

and Colby B. Vogt, Attorneys for Appellant

R. Christian Hansen, Attorney for Appellee

J UDGE W ILLIAM A. T HORNE J R

. 1 authored this Opinion, in which

J UDGE S TEPHEN L. R OTH concurred. J UDGE G REGORY K. O RME

concurred in part and dissented in part, with opinion.

THORNE, Judge:

¶1 Jason Douglas Woolums (Husband) appeals the district

court’s order awarding alimony of $579 per month to Christine

Woolums (Wife) for a period of time equal to the duration of the

parties’ marriage. We affirm.

1. Judge William A. Thorne Jr. participated in and voted on this

case as a regular member of the Utah Court of Appeals. He retired

from the court before this decision issued.Woolums v. Woolums

BACKGROUND

¶2 Husband and Wife married on July 19, 1996. The marriage

produced three children, all of whom were minors at the time of

trial. The parties separated in May 2010, and Wife filed for divorce

in November of that year. Before trial, Husband and Wife settled

their child custody and support issues. However, they could not

reach an agreement on property division, division of marital debts,

and alimony, and the matter proceeded to trial on those issues on

April 18, 2012.

¶3 At trial, the parties presented evidence of their respective

financial need and income for purposes of establishing an alimony

award. To demonstrate her financial need, Wife presented an

Amended Financial Declaration to the court detailing her monthly

expenses. Wife testified at trial that her claimed expenses totaled

$3,406 and included a mixture of current expenses and prospective

expenditures that Wife expected to incur as she got settled. These

prospective expenditures included renter’s insurance, residential

maintenance costs, a telephone landline and internet connection,

insurance premiums, and estimated car payments. Wife provided

bills verifying her water, electricity, sewer, garbage, and cell phone

expenses but did not provide receipts or other documentary proof

for her other current and prospective expenses. The district court

reduced Wife’s claimed monthly residential maintenance expense

from $50 to $10 and adjusted her monthly incidental expenses

upward from $25 to $75, but it otherwise accepted Wife’s figures.

Ultimately, the district court determined that Wife’s monthly

expenses—including certain debts that Wife agreed to pay—totaled

$3,466.

¶4 As to her income, Wife provided the district court with a

W

‐ 2 form showing an annual income of $7,502. However, Wife also

presented evidence that her annual 10% religious tithing was

$1,226, suggesting an annual income of $12,260. At the time of trial,

Wife worked part

‐ time for the Box Elder School District for twenty

‐

five hours a week at $11.58 an hour. She had looked unsuccessfully

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‐ CA 2013 UT App 232 2Woolums v. Woolums

for full

‐ time work, but could only locate additional part

‐ time work

that started at minimum wage and could increase to about $10 per

hour for florist work, at which Wife had some experience. In light

of this evidence, the district court imputed Wife’s gross income to

be $1,581 per month or $18,972 per year, representing her actual

part

‐ time income plus imputed income at the minimum wage of

$7.25 an hour for the balance of a full

‐ time work week.

¶5 During their marriage, the parties had incurred tens of

thousands of dollars of marital debt. Prior to trial, both parties

agreed that Husband would assume 93% of the outstanding

marital debt in order for him to ensure his good credit rating, avoid

bankruptcy, and keep the security clearance required by his current

job. One of the debts that Husband agreed to pay was a loan from

Husband’s mother for $50,000. The parties had made thirty $500

monthly payments and one $1,500 payment toward this loan over

the course of the marriage, but they had not made any payments

during the last seven months of their marriage. Despite the parties’

fairly consistent history of $500 monthly payments, the district

court allocated Husband only $100 per month toward servicing

that particular loan. The district court reasoned that there was no

note evidencing the loan, there was no formal payment schedule,

and Husband’s ability to repay his mother would increase over

time as he paid off other debts.

¶6 In light of this and other evidence, the district court

determined that Wife had an unmet monthly need of $1,045 and

that Husband had the ability to pay $579 per month in alimony.

Accordingly, the court ordered Husband to pay $579 in monthly

alimony. Husband argued that the alimony should be rehabilitative

in nature and last for some period less than the fourteen

‐ year

duration of the marriage. However, the district court awarded

traditional alimony for a period equal to the entire duration of the

marriage, reasoning that the couple had been married for fourteen

years, Wife was thirty

‐ four years old, and Wife had not received

any specialized job training or education beyond the high school

level. Husband appeals the district court’s alimony award.

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‐ CA 2013 UT App 232 3Woolums v. Woolums

ISSUES AND STANDARD OF REVIEW

¶7 Husband raises multiple issues on appeal, challenging the

district court’s determination of Wife’s financial need and income,

its treatment of the marital debts, and its award of traditional

rather than rehabilitative alimony. We will not disturb the district

court’s alimony award unless Husband can demonstrate “‘a clear

and prejudicial abuse of discretion’” by the district court. Mark v.

Mark

, 2009 UT App 374, ¶ 6, 223 P.3d 476 (quoting Riley v. Riley

,

2006 UT App 214, ¶ 15, 138 P.3d 84).

ANALYSIS

I. Wife’s Financial Need

¶8 Husband’s first argument is that the district court abused its

discretion when it accepted Wife’s testimony as to many of her

claimed expenses even though those expenses were not yet being

incurred at the time of trial and Wife did not provide documentary

evidence in support of her testimony. Husband interprets our prior

decisions in Mark v. Mark

, 2009 UT App 374, 223 P.3d 476, and

Jensen v. Jensen

, 2008 UT App 392, 197 P.3d 117, as imposing a

requirement that the determination of expenses for purposes of

alimony computation must be based on current, actual expenses

that are documented by receipts, billing statements, or other

physical evidence. See Mark

, 2009 UT App 374, ¶¶ 8–10 (remanding

alimony issue to district court in light of inadequate factual

findings to support the award); Jensen

, 2008 UT App 392, ¶ 12

(affirming district court’s reduction of “‘overstated and

exaggerated’” claimed expenses).

¶9 Husband’s argument that expenses must be current

expenses that are actually being incurred at the time of trial is

foreclosed by Utah case law addressing this exact issue. This court

has disavowed the notion that “standard of living is determined by

actual expenses alone.” Howell v. Howell

, 806 P.2d 1209, 1212 (Utah

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‐ CA 2013 UT App 232 4Woolums v. Woolums

Ct. App. 1991). A party’s current, actual expenses “may be

necessarily lower than needed to maintain an appropriate standard

of living for various reasons, including, possibly, lack of income.”

Id

. It is thus incumbent upon the district court to determine the

amount necessary to maintain the standard of living established

over the course of the marriage rather than the amount that is

actually being spent at the time of trial. See id. ; see also Farnsworth

v. Farnsworth

, 2012 UT App 282, ¶ 15, 288 P.3d 298 (affirming

district court’s finding that a prospective housing expense would

be $700 to $710 per month based on a hypothetical $140,000 house).

¶10 We are similarly unpersuaded by Husband’s argument that

Wife was required to provide documentary evidence in support of

her claimed expenses. Wife provided bills documenting many of

her current expenses, including her water, electricity, and cell

phone. As to her other claimed expenses, Wife testified as to the

amounts she was claiming and why. The district court largely

accepted Wife’s testimony, reducing only her claimed residential

maintenance expense while increasing her claimed incidental

expenses. The 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 broad discretion to

determine an appropriate alimony award. See Black v. Black

, 2008

UT App 465, ¶ 11, 199 P.3d 371 (“Trial courts are given broad

discretion to address issues related to alimony.”); see also

Farnsworth

, 2012 UT App 282, ¶¶ 4, 15–16 & n.5 (affirming the

district court’s housing expense determination based on testimony

as to the cost of new housing versus an apartment rental and horse

boarding); Davis v. Davis

, 2003 UT App 282, ¶ 10 n.3, 76 P.3d 716

(affirming the district court’s determination of a reasonable car

payment based solely on testimony). 2

2. We note that in the absence of an applicable statute of frauds or

similar requirement of written evidence, triers of fact are generally

permitted—although not required—to accept oral testimony as a

legitimate basis for factual findings. This is true across the

(continued...)

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‐ CA 2013 UT App 232 5Woolums v. Woolums

¶11 In light of these cases, the district court’s discretion clearly

encompasses basing its alimony determinations on testimony as to

both existing expenses and future expenses that are necessary to

maintain an appropriate standard of living. 3 Here, the district court

relied on Wife’s testimony, along with some documentary

evidence, to determine Wife’s financial need. We affirm the district

court’s determination as falling well within the boundaries of its

discretion.

II. Wife’s Income

¶12 Husband argues that the court abused its discretion when

it imputed additional part

‐ time income to Wife at the minimum

wage of $7.25 per hour rather than the $10 per hour she could make

with her floral experience. Husband also argues that the district

court failed to consider all sources of Wife’s income because her

religious tithing suggested an annual income greater than that

reflected on her W

‐ 2 form. We see no abuse of discretion in the

district court’s determinations regarding Wife’s income. See Griffith

2. (...continued)

spectrum of legal contexts, and we see no reason for a different rule

pertaining to alimony determinations. See, e.g.

, State v. Cecil

, 2012

UT App 280, ¶ 11, 288 P.3d 22 (stating that testimony that the

defendant “‘accelerated into the hoist’ from a stop ten to fifteen feet

away and ‘crashed right into the engine hoist’ is clearly adequate

to support a finding that [the defendant] intentionally struck the

hoist”); Carbon Cnty. v. Department of Workforce Servs.

, 2012 UT App

4, ¶ 10, 269 P.3d 969 (stating that testimony provided “‘relevant

evidence [that] a reasonable mind might accept as adequate’

. . . to

support the Board’s factual findings” (alteration in original)

(citation omitted)), aff’d

, 2013 UT 41.

3. We do not intend to discourage parties from providing

documentary evidence of their expenses if such evidence is

available, and we observe that such evidence is likely to be

considerably more persuasive than testimony alone.

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‐ CA 2013 UT App 232 6Woolums v. Woolums

v. Griffith

, 1999 UT 78, ¶ 19, 985 P.2d 255 (“[T]rial courts have broad

discretion in selecting an appropriate method of assessing a

spouse’s income and will not be overturned absent an abuse of

discretion.”).

¶13 The district court’s imputation of part

‐ time income to Wife

in the amount of $7.25 an hour is supported by evidence at trial.

Wife testified that she had sought part

‐ time employment from

multiple potential employers but that most of them offered only

minimum wage. Wife testified that she had inquired at two floral

shops, and both had indicated that she would start any part

‐ time

work at minimum wage and that, even with her experience, her

wage would never exceed $10 per hour. Husband points to no

evidence contradicting Wife’s testimony on this issue. In light of

Wife’s undisputed testimony that any part

‐ time employment she

might obtain would start at minimum wage, we see no abuse of

discretion in the district court’s decision to impute additional part

‐

time income in that amount. See Busche v. Busche

, 2012 UT App 16,

¶ 24, 272 P.3d 748 (stating that the district court has the discretion

to determine “whether income ought to be imputed

. . . , and if so,

how much”).

¶14 Husband also complains that the district court relied on

Wife’s W

‐ 2 form to establish her annual income of $7,502 when her

10% religious tithing of $1,226 suggested an actual annual income

of $12,260. Husband argues that the district court’s failure to

account for this discrepancy violated its obligation to “consider all

sources of income” in making its alimony determination. See

Breinholt v. Breinholt

, 905 P.2d 877, 880 (Utah Ct. App. 1995)

(citation and internal quotation marks omitted). Wife asserts on

appeal that the discrepancy resulted from her paying tithing on the

child support she received from Husband in addition to her

employment income. Although Wife acknowledges that there is no

direct record evidence to support this assertion, it is not

inconsistent with her testimony, and we observe that Husband

declined to file a reply brief refuting Wife’s claim.

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‐ CA 2013 UT App 232 7Woolums v. Woolums

¶15 In any event, Husband acknowledges that any error arising

from the discrepancy between Wife’s W

‐ 2 form and her tithing

statement would only prejudice him if the annual income

suggested by Wife’s tithing exceeded the total amount of Wife’s

actual and imputed income as determined by the district court. The

district court determined that Wife’s actual and imputed annual

income totaled $18,972—an amount greatly exceeding the amount

suggested by her tithing. Accordingly, Husband has suffered no

prejudice, and we will not disturb the district court’s determination

of Wife’s total actual and imputed income. See Mark v. Mark

, 2009

UT App 374, ¶ 6, 223 P.3d 476 (“Alimony determinations will be

upheld on appeal unless a clear and prejudicial abuse of discretion

is demonstrated.” (emphasis added) (citation and internal

quotation marks omitted)).

III. Marital Debt

¶16 Husband next raises two arguments pertaining to the

district court’s treatment of the parties’ marital debt for purposes

of determining alimony. Husband argues that the district court’s

alimony award failed to adequately account for his voluntary

assumption of 93% of the marital debt and that the district court

abused its discretion in reducing his monthly debt service expense

on a loan from his mother from $500 to $100.

¶17 Husband argues that he was entitled to receive some

unspecified accommodation in the district court’s alimony award

in exchange for his assumption of the vast majority of the marital

debt. See Boyer v. Boyer

, 2011 UT App 141, ¶ 11, 259 P.3d 1063

(balancing the district court’s allocation of marital debt to husband

against its unequal property division in favor of husband).

Assuming that this argument is not completely foreclosed by

Husband’s voluntary assumption of the debt, we observe that

Husband did receive a benefit from the debt allocation—the ability

to ensure the payment of the debt and avoid any negative impact

on the security clearance required by his current employment. See

id. (affirming unequal debt allocation where district court “made

Husband responsible for the debt to decrease the likelihood of a

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bankruptcy, which could result in adverse professional

consequences for Husband”). We see no abuse of discretion in the

district court’s decision not to further accommodate Husband’s

voluntary debt assumption in the alimony award.

¶18 Husband also argues that the parties had historically made

$500 monthly payments to retire a $50,000 marital loan from

Husband’s mother and that the district court abused its discretion

when it allowed Husband only a $100 monthly expense to service

that debt going forward. However, the district court justified its

decision with findings that there was no note evidencing the loan,

there was no formal payment schedule, and Husband’s ability to

repay the loan would increase over time as he paid off other debts.

Further, the record reflects that the parties missed multiple

monthly payments over the course of the marriage and divorce

litigation with no apparent consequence. 4 In light of the lack of a

promissory note, the parties’ informal and sporadic payment

history, and the district court’s recognition that Husband’s ability

to pay off the loan would increase over time, we see no abuse of

discretion in the decision to allow Husband only a $100 monthly

allocation for servicing the flexible loan from his mother. 5

IV. Traditional Alimony

¶19 Finally, Husband challenges the district court’s decision to

award traditional alimony for a period of time equal to the

4. Husband acknowledges on appeal that when the missed

payments are taken into account, the parties’ average monthly

payment on the loan was only $415.

5. The dissenting opinion’s analysis of this issue would have

represented a justifiable exercise of discretion had the district court

chosen to employ it. However, the district court also acted within

its discretion when it elected to reprioritize the payment schedule

on the loan from Husband’s mother in light of the absence of fixed

repayment terms.

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duration of the parties’ marriage, arguing that Wife’s circumstances

are more amenable to a shorter

‐ term award of rehabilitative

alimony. Compare Bell v. Bell

, 810 P.2d 489, 491–92 (Utah Ct. App.

1991) (“The most important function of [traditional] alimony is to

provide support for the wife as nearly as possible at the standard

of living she enjoyed during the marriage, and to prevent the wife

from becoming a public charge.” (citation and internal quotation

marks omitted)), with Mark v. Mark

, 2009 UT App 374, ¶ 12, 223

P.3d 476 (stating that the purpose of rehabilitative alimony is to

close the immediate gap between expenses and income and to

enable the recipient spouse to become more self

‐ sufficient by the

end of the rehabilitative period). Husband argues that the facts of

this case are comparable to those in Boyer v. Boyer

, 2011 UT App

141, 259 P.3d 1063, which this court described as “precisely the

context in which a rehabilitative alimony award may be

appropriate.” Id. ¶ 17.

¶20 In Boyer

, we reaffirmed that “‘[t]he length of the marriage,

the age of the recipient spouse, and the employment history and

employability of the recipient spouse’ are relevant factors to

consider in determining whether an award of rehabilitative

alimony, rather than traditional alimony, is appropriate.” Id.

(quoting Mark

, 2009 UT App 374, ¶ 12). The recipient spouse in

Boyer was thirty

‐ eight years old, worked part

‐ time at $11.50 per

hour, and possessed significant professional skills, and the

duration of the parties’ marriage was approximately fourteen

years. See id. ¶¶ 2, 17. We agree with Husband that these facts are

roughly comparable to the circumstances facing Wife in this case.

¶21 However, while Husband correctly cites Boyer for the

proposition that these facts would support an award of

rehabilitative alimony, Boyer expressly recognized that the same

facts would also support a traditional alimony award. See id. ¶ 19

(“Given the circumstances of this case, neither ruling would be an

abuse of the trial court’s discretion.”). In light of this express

language of approval based on roughly similar facts, we cannot say

that the district court abused its discretion by awarding traditional

alimony to Wife in the present case.

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‐ CA 2013 UT App 232 10Woolums v. Woolums

CONCLUSION

¶22 We conclude that Husband has failed to demonstrate that

any of the district court’s rulings pertaining to Wife’s expenses and

income, the marital debt, or the question of traditional versus

rehabilitative alimony constituted an abuse of the district court’s

broad discretion to determine matters pertaining to alimony. We

therefore affirm the district court’s alimony award.

ORME, Judge (concurring in part and dissenting in part):

¶23 I concur in the court’s opinion in all respects but one. The

loan from Husband’s mother seems to have been on a much firmer

footing than the intra

‐ family “loans” that sometimes surface in

divorce cases. See generally Finlayson v. Finlayson

, 874 P.2d 843, 848

(Utah Ct. App. 1994) (“Whether moneys received from close family

members represent a gift or a debt can be problematic.”). While

there may not have been a note memorializing the loan in the

instant case, there was a firmly established payment schedule of

$500 per month. Cf. Baker v. Baker

, 866 P.2d 540, 543 (Utah Ct. App.

1993) (holding that evidence was sufficient to support trial court’s

finding that loan from husband’s parents was not a gift, even

though no note memorialized debt, where husband and his parents

had always viewed the money as a loan and there was evidence of

payment history). Thirty such payments were made. And the one

$1500 payment was presumably just a single check covering three

months. The fact that seven payments were missed as the marriage

was winding down did not mean the debt had vaporized; rather,

it meant that the family was readjusting to the financial realities of

divorce and that Husband’s mother was inclined to cut them a little

slack.

¶24 Especially because the district court was willing to take into

account expenses that Wife was not currently incurring, but soon

would be, it should have similarly allocated to Husband’s expense

column the historical payment schedule on the debt owed to his

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‐ CA 2013 UT App 232 11Woolums v. Woolums

mother, namely $500 per month, even though repayment had been

briefly suspended. This expense was even more firmly

demonstrated than were several of Wife’s claimed future expenses

recognized by the district court, which were based solely on her

own testimony as to her plans for the future and her estimates

about the additional costs those plans would entail.

¶25 I would remand the case for the limited purpose of having

the district court recompute the monthly alimony amount payable

by Husband, taking into account the full amount of this $500 per

month expense for debt payment.

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‐ CA 2013 UT App 232 12