2013 UT App 105

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

N ANETTE L YNN B EAL

,

Petitioner and Appellant,

v.

P ATRICK M ICHAEL B EAL

, Respondent and Appellee.

Opinion

No. 20110903

‐ CA

Filed April 25, 2013

Third District, West Jordan Department

The Honorable Mark S. Kouris

No. 074400610

David R. Hartwig, Attorney for Appellant

David S. Pace, Attorney for Appellee

J UDGE G REGORY K. O RME authored this Opinion, in which J UDGES

C AROLYN B. M C H UGH and S TEPHEN L. R OTH concurred.

ORME, Judge:

¶1 After a series of three review hearings in 2010, the district

court determined that Nanette Beal was not entitled to alimony

from her ex

‐ husband, Patrick Beal, under the terms of their 2007

divorce decree. Nanette appeals that determination, and we affirm.

BACKGROUND

¶2 The Beals’ divorce was finalized on September 21, 2007. The

divorce decree provided Nanette $2,500 per month in “transitional

alimony” from May 2007 to September 2009, when both partiesBeal v. Beal

1. While the amount of permanent alimony remained unset, the

divorce decree memorialized that alimony was to continue for a

period of time equal to the length of the marriage, subject to

termination on the death of either party, remarriage of Nanette,

cohabitation of Nanette with a non

‐ related person of the opposite

sex, or any other statutory ground for termination.

2. When the parties separated, Nanette took the copies of the trust

documents with her. Patrick was not in possession of a copy of the

trust documents from that point until Nanette produced trust

documentation shortly before the second evidentiary hearing.

3. Nanette never explained why, as a trust beneficiary, she chose to

part with her only copies of these important documents.

20110903

‐ CA 2013 UT App 105 2 were required to convene for an alimony review. 1 For that review,

the decree required both parties to exchange “all income and asset

information, from any source, including trusts

, government benefits,

employment, investments, etc.” (Emphasis added.) In a separate

provision, the decree provided that each spouse would receive all

property attributable to their respective families.

¶3 In anticipation of the mandated alimony review, Patrick

requested that Nanette produce various financial documents,

including copies of documents related to a trust of which Nanette

is a beneficiary. At the time of their divorce, Nanette was in

possession of two copies of the trust documents, 2 but she claimed

to have returned those copies to her father, the trustee, sometime

later. 3 On January 15, 2009, the district court ordered Nanette to

provide a copy of the trust documents to Patrick within fifteen

days. Despite that order, Nanette did not provide Patrick with a

copy and did not make any effort to obtain a copy from her father.

¶4 On April 30, 2010, the first evidentiary hearing to review the

parties’ alimony status was held. Nanette still had not submitted a

copy of the trust documents to either Patrick or the court. Patrick

testified that both parties were aware of the trust during their

marriage and that he had seen an accounting of the trust placing itsBeal v. Beal

4. Nanette did not list the trust on her financial declaration, even

though she is a named beneficiary.

20110903

‐ CA 2013 UT App 105 3 value at $435,000 in 1991. Nanette testified that she had not

attempted to obtain a copy of the trust documents, had not

received anything from the trust, and had no expectation of

receiving any income from the trust.

¶5 During the course of the hearing, the court discovered

several discrepancies between Nanette’s submitted financial

declaration, 4 her testimony, Patrick’s testimony, and other

documentation submitted by the parties. In light of those

discrepancies, the district court ultimately concluded that it could

not make an appropriate alimony determination without

supplemental briefing, argument, and an additional hearing.

Accordingly, a follow

‐ up hearing was scheduled.

¶6 Shortly before the second hearing, Nanette produced a copy

of the original trust agreement, but she did not include an

accounting of the trust’s activities or any subsequent amendments

to the trust of which Patrick testified having knowledge. Those

documents—and the absent accounting—generated concerns from

both the court and Patrick about whether Nanette was receiving

any income from the trust, and the court concluded that

questioning Nanette about the trust would be both beneficial and

necessary. Nanette was not in attendance during the second

hearing, however, so the district court once again continued the

matter and scheduled another hearing. At that point, the court

issued an order requiring Nanette to “produce all relevant and

necessary documents concerning the referenced trust subject to

request from [Patrick]” for review before the hearing.

¶7 The third and final hearing was held on September 7, 2010.

Nanette represented to the court that she had produced all

documents relevant to the trust. The amended financial declaration

she submitted for the hearing showed $30,750 in loans from herBeal v. Beal

5. The debt had increased $15,000 from her previous financial

statement and had grown in fairly regular $3,000 increments.

6. Patrick testified that the trust originally provided for full

disbursement of the trust assets to Nanette when she turned forty.

The trust was amended while the parties were still married to

change the payout age to fifty. Nanette was older than fifty at the

time of the third hearing.

20110903

‐ CA 2013 UT App 105 4 father, 5 but Nanette did not put on any evidence in an effort to

establish that the money did not actually come from the trust of

which her father was trustee and she was beneficiary. Instead, she

merely reasserted that she had not received any money from the

trust.

¶8 In a written memorandum decision, the district court

determined that Nanette would not be awarded any alimony. The

court’s decision factored in Patrick’s ability to provide support and

Nanette’s ability to produce income. While the court was able to

calculate Patrick’s net disposable monthly income at a negative

$303, it was unable to conclusively determine Nanette’s income or

ability to earn income. The court noted that Nanette had failed to

timely comply with numerous court orders; that there were still

unresolved discrepancies between Nanette’s financial declaration,

her testimony, and the submitted trust documentation; that the

trust language explicitly stated that the trust was “intended for the

personal protection and welfare” of Nanette; and that Patrick

testified that by the terms of the trust, Nanette was entitled to

receive all assets of the trust. 6 The district court concluded that

because it could not “ascertain [Nanette’s] ability to earn,” there

was no reason to evaluate her financial need and she was not

entitled to any further alimony.

ISSUES AND STANDARDS OF REVIEW

¶9 Nanette first challenges the district court’s analytical

framework, arguing that it could only “terminate” her alimonyBeal v. Beal

20110903

‐ CA 2013 UT App 105 5 upon a showing of a substantial change in circumstances. See Wells

v. Wells

, 871 P.2d 1036, 1040 (Utah Ct. App. 1994) (“On a petition to

modify a divorce decree, the threshold requirement is a showing

of a substantial change of circumstances since entry of the divorce

decree.”). Whether the district court applied the proper legal

standard is a question of law that is reviewed for correctness. Chen

v. Stewart

, 2004 UT 82, ¶ 19, 100 P.3d 1177.

¶10 Nanette also challenges the district court’s alimony

determination. In essence, Nanette argues that the court erred both

in requiring her to produce all trust documents and in relying on

the documents she did produce in determining its award. Courts

have wide latitude in determining alimony awards, and we will not

overturn an alimony determination “unless a clear and prejudicial

abuse of discretion is demonstrated.” Riley v. Riley

, 2006 UT App

214, ¶ 15, 138 P.3d 84 (citations and internal quotation marks

omitted).

I. Alimony Framework

¶11 Nanette contends that the “transitional alimony” awarded

in the divorce decree was actually a final and permanent alimony

award. As such, she maintains that the award can only be changed

if Patrick adequately demonstrates a substantial change in

circumstances. We disagree. Alimony awards come in different

varieties. See, e.g.

, Wells

, 871 P.2d at 1038–39 (analyzing court’s

ability to award temporary alimony) ; Bell v. Bell

, 810 P.2d 489, 493

n.3 (Utah Ct. App. 1991) (“The purpose of rehabilitative alimony is

in the short run to close the gap between actual expenses and

actual income to enable the receiving spouse to then be better able

to support herself when the alimony and schooling end.”); Petersen

v. Petersen

, 737 P.2d 237, 242 n.4 (Utah Ct. App. 1987) (observing

that “reimbursement” alimony is sometimes appropriate). And

several of those variants are not considered permanent alimony

awards. See Wells

, 871 P.2d at 1039 (indicating that temporary

alimony is separate and distinct from permanent alimony).Beal v. Beal

20110903

‐ CA 2013 UT App 105 6 ¶12 While the award here was not expressly characterized as a

temporary award, the plain meaning of the phrase “transitional

alimony” and the clear intent of the divorce decree demonstrate

that the award was not meant to be permanent. “Transition” is not

synonymous with permanence, but rather relates to “a passage or

movement from one state, condition, or place to another.” See

Webster’s Third New Int’l Dictionary 2428 (1993). Therefore, the

decree’s “transitional” award is, by definition, an award that is

subject to change. Within the framework of this divorce decree,

which calls for an alimony review after two years and following the

exchange of information that would permit the calculation of a

permanent alimony award, an award intended to be reviewed and

changed cannot reasonably be viewed as permanent.

¶13 From all that appears, the transitional alimony award and

delayed review were intended to put the requisite statutory

alimony determination on hold for two years to provide Nanette

adequate time to complete her ongoing education and otherwise

transition into her new circumstances. While courts have broad

discretion in fashioning permanent alimony awards, they must at

least consider the following factors:

(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;

(iv) the length of the marriage;

(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 payorBeal v. Beal

7. Because the provisions in effect at the relevant time do not differ

materially from the statutory provisions now in effect, we cite the

most recent version of the Utah Code as a convenience to the

reader.

8. The notably round figure of $2,500 is itself suggestive of a

number that was simply agreed to or considered as a plausible

ballpark figure rather than one that emerged from the careful

calculations contemplated by section 30

‐ 3

‐ 5(8)(a).

20110903

‐ CA 2013 UT App 105 7 spouse or allowing the payor spouse to attend school

during the marriage.

Utah Code Ann. § 30

‐ 3

‐ 5(8)(a) (LexisNexis Supp. 2012). 7 See Jensen

v. Jensen

, 2008 UT App 392, ¶ 9, 197 P.3d 117. There is nothing in

the divorce decree or record to demonstrate that these factors were

analyzed at all before the district court granted the $2,500 per

month transitional alimony. 8 Instead, the court specifically left that

analysis for another day and gave Nanette a transitional award in

the interim. When the parties finally reconvened in April 2010, it

was incumbent upon the court to engage in a detailed analysis of

those statutory factors—which it did—rather than require Patrick

to demonstrate why the transitional award should not simply be

made permanent. We conclude that the court applied the correct

legal standard and that substantial

‐ change

‐ in

‐ circumstances

analysis is not applicable in this situation.

II. Alimony Determination

¶14 Nanette argues that the district court erred in requiring her

to produce all of the trust documents and in factoring the

documents she did provide into its alimony determination. In

making its determination, the district court was required to

consider “the recipient’s earning capacity or ability to produce

income.” Utah Code Ann. § 30

‐ 3

‐ 5(8)(a)(ii) (LexisNexis Supp. 2012).

Without question, a trust of which Nanette is a beneficiary and thatBeal v. Beal

20110903

‐ CA 2013 UT App 105 8 was created “for [her] personal protection and welfare” is both an

asset and a potential source of income.

¶15 Under the law of both Utah and Arizona, where the trust

was formed, a trust beneficiary is unqualifiedly entitled to a copy

of any trust instrument that describes or affects the beneficiary’s

interest. See Utah Code Ann. § 75

‐ 7

‐ 811(2)(a) (LexisNexis Supp.

2012); Ariz. Rev. Stat. Ann. § 14

‐ 10813(B)(1) (2012). A trust

beneficiary is also entitled in both states to a yearly report of the

trust property, liabilities, receipts, and disbursements. See Utah

Code Ann. § 75

‐ 7

‐ 811(3); Ariz. Rev. Stat. Ann. § 14

‐ 10813(C).

Therefore, Nanette was in a position to timely produce all of the

requested trust documentation to Patrick and to the court via a

demand for copies from her father, the trustee. Rather than

complying with multiple production requests and court orders,

however, Nanette chose not to produce any documents for well

over a year without any explanation. Even after she finally

produced a copy of the original trust instrument, Nanette did not

provide an accounting of the trust’s activities, generating more

concerns and questions from the district court. The court was

ultimately saddled with numerous abnormalities and

discrepancies, including the ever

‐ increasing debt allegedly owed

to Nanette’s father and the fact that she had apparently become

entitled to the trust proceeds. With the limited information before

it, the court simply had no way to accurately calculate Nanette’s

income stream.

CONCLUSION

¶16 Because the district court was not modifying the amount of

permanent alimony set in the divorce decree but setting an initial

permanent award, the court was correct to analyze the statutory

factors under Utah Code section 30

‐ 3

‐ 5(8)(a). Nanette was in a

position to timely and fully produce all of the requested trust

documentation, which she did not do. Given the numerous

discrepancies and unresolved issues identified by the court,Beal v. Beal

9. Patrick seeks an award of attorney fees incurred on appeal.

Because the district court ordered the parties to pay their own fees

below, we decline to award attorney fees on appeal. See Larson v.

Larson

, 888 P.2d 719, 727 (Utah Ct. App. 1994).

20110903

‐ CA 2013 UT App 105 9 coupled with Nanette’s relative lack of cooperation and candor, we

cannot conclude that the district court abused its discretion in

determining that Nanette had not demonstrated that she was

entitled to an award of permanent alimony.

¶17 Affirmed. 9