Allen v. Allen

2014 UT App 27
_________________________________________________________
THE UTAH COURT OF APPEALS
COLTER THOMAS ALLEN,
Petitioner and Appellee,
v.
LACEE C. ALLEN,
Respondent and Appellant.
Memorandum Decision
No. 20120925-CA
Filed January 30, 2014
Sixth District Court, Manti Department
The Honorable Lyle R. Anderson
No. 104600168
Douglas L. Neeley, Attorney for Appellant
Virginia L. Sudbury and Alison Satterlee,
Attorneys for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and MICHELE M.
CHRISTIANSEN concurred.
ROTH, Judge:
¶1 Colter Thomas Allen (Husband) and Lacee C. Allen
(Wife) were married on June 13, 2009, and are the parents of a
young daughter (Daughter). Husband filed for divorce in 2010,
and after a bench trial, the trial court awarded Husband physical
custody of Daughter, refused Wife’s request for alimony and
attorney fees, and awarded both the marital home and the
marital debt to Husband. Wife appeals, arguing that the court
did not make adequate findings to support its decisions. We
affirm in part, reverse in part, and remand for further
proceedings.

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¶2 Husband filed a petition for divorce on September 22,
2010. The Sixth District Court held a bench trial on the matter on
June 15, 2012. The parties’ primary disagreements concerned
Daughter’s physical custody, division of the marital home,
alimony, and attorney fees.
¶3 At trial, Husband put on testimony from a neighbor who
claimed to have seen several late-night parties at the couple’s
home while Husband was away for ‚deployments or on training
sessions‛ with the Army National Guard. The neighbor also
testified that Wife’s vehicle was parked at the couple’s driveway
after 7:00 p.m. ‚*j+ust a couple nights a week.‛ Husband testified
that Wife would ‚stay out ‘til the wee hours of the morning or
not come home at all‛ at least ‚four nights a week‛ and that she
had an affair four months after the couple’s wedding. With
respect to the couple’s debts and assets, Husband testified that
he purchased a home in June 2008 for $96,000, a full year before
marrying Wife. After speaking with a realtor and looking at
prices for similar homes in his area, Husband believed the home
was worth about $80,000, but at the time he owed $90,000 on the
mortgage. Other marital debts included $1,100 for Wife’s tuition
at an applied technology college, $1,000 in supplies for a nail
salon Wife planned to open, $3,500 for furniture, and another
$300 for shopping and dining costs Wife charged to Husband’s
credit card. Husband stated that his gross monthly income was
$4,854.
¶4 Wife testified that she seldom stayed out late with her
friends, ‚not even once a week.‛ With respect to child custody,
Wife and her mother both testified that Wife was the primary
caregiver, but Wife acknowledged that Husband ‚stepped up‛
as a father after the couple separated. Wife also expressed
concern about Husband’s emotional stability, citing an unsent
message she found on his phone that she believed read ‚like a
suicide letter.‛ A family friend testified that Wife appeared to
have a stronger bond with Daughter than Husband. In regard to
marital property, Wife stated that the tax-assessed value of the

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home ‚was $102,000 . . . or $103,000‛ and opined that the
property was probably worth more, apparently because she
generally recalled the mortgage bank’s appraisal being higher
than that. Wife’s pay statements showed that she worked fifteen
to twenty hours per week at a bank, earning a gross monthly
income of a little less than $1,000. After the couple’s separation,
her monthly expenses exceeded her income by about $600. As a
result, Wife indicated that she was not able to pay back any of
the marital debt at that time. Finally, on the issue of attorney
fees, Wife testified that she funded her representation with a
$2,300 personal loan and still owed an additional $1,800 that she
did not have the resources to repay beyond making a $112
monthly payment.
¶5 The trial court awarded Husband physical custody of
Daughter and denied Wife’s requests for alimony and attorney
fees. The court awarded the marital home to Husband, along
with the associated mortgage, and allocated all of the remaining
marital debt to him as well. With respect to child custody, the
court found that ‚*b+oth parents have been actively involved in
[Daughter+’s life, and both have provided a substantial portion
of all the different kinds of nurturing [Daughter] requires.‛
Ultimately, even though ‚both parents appear*ed+ nearly equally
capable of caring for [Daughter+,‛ the court determined that ‚the
stability offered by Husband outweigh[ed] the apparent
empathy of Wife.‛ In regard to the marital home and marital
debt, the court found that ‚Husband’s income is both higher and
more reliable than Wife’s‛ and that the couple had not
‚appreciably improved their equity in the home during their
marriage‛—equity that the court found to be negligible. In
refusing Wife’s request for alimony, the court stated, ‚No
alimony is awarded because Wife did not become dependent on
Husband because of their marriage‛ and made no other factual
findings on the issue. Finally, the court denied Wife’s request for
attorney fees by simply noting, ‚Each party should pay his or
her own attorney’s fees.‛ Wife appeals.

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¶6 Wife challenges the trial court’s decision awarding
Husband custody of Daughter and denying her alimony and
attorney fees. She also challenges the court’s division of marital
assets. We affirm the child custody award and the division of
marital assets. However, we set aside the trial court’s denial of
alimony and attorney fees and remand for further consideration.
I. Child Custody
¶7 Wife argues that the trial court’s findings of fact are
insufficient to support its child custody award. Specifically, she
asserts that the court’s custody award was flawed by its failure
‚to sufficiently consider the past conduct and demonstrated
moral standards of each of the parties‛ as Utah Code section 30-
3-10 requires. She also asserts that the court made no findings
regarding two other statutory factors: (1) ‚which party is most
likely to act in the best interest of the child, including allowing
the child frequent and continuing contact with the noncustodial
parent,‛ and (2) ‚the extent of bonding between the parent and
child, including the depth, quality, and nature of the relationship
between a parent and child.‛ As a result, Wife argues, the court
abused its discretion when it awarded Husband custody of
Daughter. We conclude that the court’s custody decision was
adequately supported.
¶8 Child custody determinations are ‚highly personal and
individual, and do not lend themselves to the means of
generalization employed in other areas of the law.‛ Roberts v.
Roberts, 835 P.2d 193, 196 (Utah Ct. App. 1992). As a result,
‚*u+nlike support and alimony determinations, . . . there is no
checklist of custody factors,‛ id., that ‚can govern custody
determinations in all cases,‛ Smith v. Smith, 726 P.2d 423, 426
(Utah 1986). But ‚the factors relied on by the trial judge in
awarding custody must be articulable and articulated in the
judge’s written findings and conclusions.‛ Id. Utah Code
sections 30-3-10 and 30-3-10.2 list a number of factors courts
consider when making a child custody award, including ‚which

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parent is most likely to act in the best interest of the child,
including allowing the child frequent and continuing contact
with the noncustodial parent,‛ Utah Code Ann. § 30-3-10(1)(a)(ii)
(LexisNexis 2013),1 ‚the extent of bonding between the parent
and child, meaning the depth, quality, and nature of the
relationship between parent and child,‛ id. § 30-3-10(1)(a)(iii),
and ‚any other factors the court finds relevant,‛ id. § 30-3-
10.2(2)(j). We review a trial court’s custody award for an abuse
of discretion. Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241
P.3d 365.
¶9 We conclude that the trial court appropriately considered
and balanced the pertinent statutory factors. While the court
noted instances in which Wife’s conduct deviated from
appropriate bounds, it took a far more nuanced and balanced
approach than Wife acknowledges, giving little weight to the
circumstances that led to the couple’s separation: ‚Even if the
Court could award custody based upon who is responsible for
the failed marriage, the Court lacks the wisdom to determine
which of the parties is responsible for that loss.‛ Instead, the
court focused on individual factors that are directly pertinent to
both parties’ ability to care for Daughter, beginning with an
acknowledgement that ‚both parents appear nearly equally
capable of caring for [Daughter], though in different ways.‛ See
generally Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996) (noting
that child custody decisions ‚may frequently and of necessity
require a choice between good and better‛ (citation and internal
quotation marks omitted)).
¶10 In particular, the trial court’s factual findings address the
two statutory factors Wife claims the court ignored. First, the
1. Throughout this decision, we cite the current version of the
Utah Code because no substantive changes have been made to
the relevant statutory provisions that would affect the resolution
of the issues presented on appeal.

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court considered the moral character of both parties, not just
Wife’s. As we have discussed, see supra ¶¶ 3–4, the court heard
conflicting testimony regarding Husband’s emotional stability
and Wife’s maturity. It specifically found that Husband is
‚stable‛ while Wife is ‚immature,‛ with a tendency to put her
needs above those of others, including Daughter. The court may
not have discussed Husband’s moral character as extensively as
it did Wife’s, but it clearly credited testimony about Wife’s self-
indulgent lifestyle and discounted Wife’s claims that Husband
was emotionally unstable or had other disqualifying character
flaws:
Though Wife is kind and loving with [Daughter],
Wife is still quite immature. The Court believes the
accounts of Husband and his neighbor which paint
Wife as very interested in ‚partying.‛ Part of
Wife’s tendency to ‚party‛ may be attributed to
her desire to get away from Husband, but the
Court believes that she also has difficulty putting
the needs of others, even her child, above her own
to be ‚free.‛
¶11 We will not reverse a trial court’s credibility
determination unless it is ‚against the clear weight of the
evidence‛ or our review leads to a ‚definite and firm conviction
that a mistake has been made.‛ Woodward v. LaFranca, 2013 UT
App 147, ¶ 7, 305 P.3d 181 (citation and internal quotation marks
omitted). Wife has not challenged the court’s credibility
determination on appeal, nor is it against the clear weight of the
evidence. We therefore conclude that the court’s discussion of
the parties’ relative maturity, stability, and ability to care for
Daughter constitutes adequate consideration of both parties’
‚past conduct and demonstrated moral standards.‛ See Utah
Code Ann. § 30-3-10(1)(a)(i).
¶12 Second, the court adequately considered who would best
meet Daughter’s needs going forward, including which parent

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was more likely to allow Daughter contact with the other and
the character and quality of Daughter’s bond with each parent.
The findings of fact address how well each parent had
cooperated in the past ‚in sharing parent time‛ and noted that
each parent ‚provided a substantial portion of all the different
kinds of nurturing [Daughter+ requires.‛ After observing that
Husband and Wife were ‚nearly equally capable of caring for
[Daughter+,‛ the court ultimately determined that Husband’s
stability outweighed the more ‚empathetic‛ relationship Wife
had with Daughter. Further, the court directed Husband and
Wife to ‚work out a mutually agreeable schedule for sharing
parent time‛ because of Husband’s ‚regular absences‛ as a
member of the Army National Guard. We therefore cannot agree
with Wife that the court failed to adequately consider the
character and quality of Daughter’s bonds with both parents or
which parent would be more likely to allow Daughter contact
with the other.
¶13 In summary, the court’s findings of fact show it made a
difficult choice between two good parents, giving adequate
consideration to Daughter’s best interest and other pertinent
statutory factors in awarding custody to Husband. See Tucker,
910 P.2d at 1215 (‚A trial court need not find one parent
inadequate before awarding custody to the other.‛). Contrary to
Wife’s contentions, the trial court considered the moral character
of each parent, the nature and quality of Daughter’s relationship
with each parent, and which parent would be more likely to
allow Daughter contact with the other, and it exercised
discretion and judgment in reaching a difficult decision, one that
we will not disturb on appeal. See Thomas v. Thomas, 1999 UT
App 239, ¶ 3, 987 P.2d 603 (noting that child custody awards are
disturbed only where ‚the trial court’s judgment is so flagrantly
unjust as to be an abuse of discretion‛ (citation and internal
quotation marks omitted)).

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II. Marital Assets
¶14 Wife also challenges the court’s division of marital
property. Specifically, she argues that the trial court’s decision to
award Husband the marital home was not ‚based upon
adequate findings‛ because it did ‚not place a dollar value on
the distributed assets as required under Utah law.‛ She also
argues that the court failed to value the couple’s 2011 tax refund
and divide it as a marital asset. We conclude that the court made
adequate findings to support its award of the marital home to
Husband. We do not reach the tax refund issue because Wife did
not preserve it for appeal.
A. The Marital Home
¶15 The court’s findings of fact adequately support its
decision to award the marital home to Husband. Trial courts
have ‚considerable discretion‛ in distributing the marital estate,
and we will not disturb a trial court’s ruling ‚as long as *it+
exercises this discretion in harmony with the standards set by
the appellate courts.‛ Roberts v. Roberts, 835 P.2d 193, 198 (Utah
Ct. App. 1992). ‚*A+ trial court attempting to make an equitable
property distribution should engage in a four-step process,
making findings of fact that are sufficiently detailed and that
include enough subsidiary facts to disclose the steps by which
the ultimate conclusion on each factual issue was reached.‛ Boyer
v. Boyer, 2011 UT App 141, ¶ 10, 259 P.3d 1063 (citation and
internal quotation marks omitted). First, the court should
categorize all debts and assets as either separate or marital
property; second, it should determine ‚whether there are
exceptional circumstances that overcome the general
presumption‛ of equal property division; third, it should place a
value on each piece of marital property; and fourth, ‚it should
distribute property in a manner consistent with its findings.‛ Id.
(citation and internal quotation marks omitted).

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¶16 Here, the court made the following findings regarding the
marital home and the couple’s other debts:
20. Husband and Wife have a home which
Husband bought before they were married.
Husband’s income is both higher and more reliable
than Wife’s. Although Husband paid about 20%
down when he purchased the home, and has been
making regular payments on the mortgage,
Husband expresses a belief that there is no equity
in the home. The parties have additional debt
which is partly attributable to an effort to equip
Wife for more productive employment and partly
to a tendency of the parties to live beyond their
means.
21. The court is not convinced that the parties
have appreciabl[y] improved their equity in the
home during their marriage, so the court awards
Husband the home subject to the mortgage
thereon.
¶17 The court’s findings are not inadequate. There are two
ways to read the findings, and both support the court’s decision
to award the marital home to Husband. First, the court could
have determined that the home was separate property and
appropriately awarded it to Husband. It found that Husband
purchased the home prior to the couple’s marriage, and it
credited Husband’s testimony that there was no equity in the
home over Wife’s assertion that the home’s value may have
exceeded the mortgage balance by some amount. While Wife
might have had an interest in any equity that accumulated
during the marriage, the court may have determined that the
couple had not improved the equity in the home at all while they
remained together. Trial courts are required to place a value on
marital property, but not separate property, id., so the court

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accordingly awarded the home to Husband without explicitly
finding its value.
¶18 Second, the court could have determined that the home
was marital property but that the mortgage was under water. As
we have discussed, the court clearly credited Husband’s
testimony that there was little, if any, equity in the home.
Implicit in this determination is a finding that the home’s value
was less than or roughly equal to $90,000—the amount Husband
testified was outstanding on the mortgage. The court also found
that Husband’s income was ‚higher and more reliable‛ than
Wife’s. The court may therefore have categorized the home as
marital property, implicitly valued its equity at less than or
equal to $0, determined that Husband was more capable of
shouldering the burden of the substantial mortgage, and
awarded the marital home and its attendant debt in accordance
with those findings. Although the findings could have been
more detailed, they are not inconsistent with the ‚four-step
process‛ appellate courts require for equitable property division,
and the court therefore did not abuse its discretion. See id.
B. The 2011 Tax Refund
¶19 We do not reach the distribution of the couple’s 2011 tax
refund because the issue was not preserved. ‚To be preserved
for appeal, an ‘issue must be presented to the trial court in such a
way that the trial court has an opportunity to rule on that
issue.’‛ Pearson v. South Jordan City, 2012 UT App 88, ¶ 11, 275
P.3d 1035 (quoting Normandeau v. Hanson Equip., Inc., 2009 UT
44, ¶ 23, 215 P.3d 152). ‚*M+erely mentioning . . . an issue [at
trial] without introducing supporting evidence or relevant legal
authority‛ does not give the trial court that opportunity. Pratt v.
Nelson, 2007 UT 41, ¶ 15, 164 P.3d 366 (omission in original)
(citation and internal quotation marks omitted). Rather, to
sufficiently raise an issue, ‚even if indirectly, it must at least be
raised to a level of consciousness such that the trial judge can
consider it.‛ Weiser v. Union Pac. R.R. Co., 2010 UT 4, ¶ 14, 247

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P.3d 357 (citations and internal quotation marks omitted); see also
Pearson, 2012 UT App 88, ¶¶ 11–12 (holding that a city’s general
reference to an old statute as simply ‚the predecessor statute to
the one we’re looking at‛ did not preserve for appeal the
argument that the old statute governed the city’s termination of
an employee (internal quotation marks omitted)).
¶20 Here, Wife never asked the trial court to rule on the issue
she now raises on appeal—whether the 2011 tax refund is part of
the marital estate and should be equitably distributed. In his
opening statement, Wife’s attorney characterized the issues as
the ‚marital home, . . . what should happen with the child[,] . . . a
request for alimony [and] . . . attorney’s fees.‛ Likewise, in his
closing statement, Wife’s attorney discussed alimony, the marital
home, child custody, and attorney fees. At the end of the trial,
the court summarized the issues as child custody, alimony,
attorney fees, the marital home, and marital debt. The court then
asked Wife’s attorney, ‚anything else, Counsel?‛ He responded,
‚No, your honor.‛
¶21 Wife’s trial counsel did mention the tax refund twice at
trial, but neither reference indicated to the trial court that Wife
claimed a portion of the refund as part of the marital estate. First,
when Wife’s trial counsel questioned Husband about his 2011
tax refund, the exchange places the refund in the broader context
of the marital debt:
Q Okay. And what was your income tax
refund, State and Federal, for 2011.
A $2,600.
Q And did you apply that to the marital debt?
A I did not.
[Q] What did you do with it?
A I paid off some other bills that I had.
Q Okay. So you paid off your bills using the
tax deduction, but didn’t pay off any marital debt?
[A] Correct.

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20120925-CA 13 2014 UT App 27
¶22 Second, Wife mentioned the tax refund in her testimony
but seemed to assert the refund as an offset to any portion of the
marital debt that the court might otherwise consider allocating
to her. She stated her belief that she was ‚*a+bsolutely‛ entitled
to at least half of Husband’s 2011 tax refund, but only after
answering questions about the debt accumulated on Husband’s
credit card for Wife’s education and other expenses. When the
court issued a written decision that did not mention the tax
refund, Wife did not object. In light of the tax refund’s
conspicuous absence from trial counsel’s opening and closing
statements, his failure to raise it when the court summarized the
issues to be resolved at the end of trial, and his failure to object
to the trial court’s order, it is difficult to view either reference in
testimony as raising the issue ‚to a level of consciousness such
that the trial judge *could+ consider it.‛ See Weiser, 2010 UT 4,
¶ 14 (citation and internal quotation marks omitted). And given
the circumstances, the court’s failure to consider it was not
simply an oversight, but the result of Wife’s own enumeration of
the issues. See State v. Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171
(‚*A+ party cannot take advantage of error committed at trial
when that party led the trial court into commiting the error.‛
(citations and internal quotation marks omitted)).
III. Alimony
¶23 Wife argues that the trial court erred in denying her
request for alimony because the court failed to make sufficient
findings of fact to support its decision. We agree.
¶24 While we will not reverse a trial court’s alimony award
absent an abuse of discretion, we note that trial courts are
required to consider three factors before awarding or denying
alimony: ‚(1) the financial needs and condition of the recipient
spouse; (2) the ability of the recipient spouse to provide a
sufficient income for himself or herself; and (3) the ability of the
payor spouse to provide support.‛ Jensen v. Jensen, 2007 UT App
377, ¶ 4, 173 P.3d 223. And ‚the trial court must make detailed

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findings‛ on each factor, Rehn v. Rehn, 1999 UT App 41, ¶ 6, 974
P.2d 306, ‚unless the facts in the record are clear,
uncontroverted, and capable of supporting only a finding in
favor of the judgment,‛ Baker v. Baker, 866 P.2d 540, 546 (Utah Ct.
App. 1993) (citations and internal quotation marks omitted). The
failure to make such findings ‚constitutes an abuse of
discretion.‛ Rehn, 1999 UT App 41, ¶ 6 (citation and internal
quotation marks omitted).
¶25 Here, the trial court’s factual findings regarding alimony
are contained in a single sentence: ‚No alimony is awarded
because Wife did not become dependent on Husband because of
their marriage.‛ Beyond what may be implied by that statement,
the court did not discuss Wife’s financial needs and condition,
assess her ability to generate sufficient income to cover her
expenses, or analyze Husband’s ability to provide support.
¶26 Husband argues that the court ‚properly heard testimony
or reviewed evidence based upon each factor,‛ and therefore ‚it
is clear on its face that the court properly considered each factor
and . . . determined that to award alimony would have been
improper.‛ While the court’s conclusion that ‚Wife did not
become dependent on Husband because of their marriage‛
might be interpreted to mean that, as a practical matter, her
lifestyle had not changed as a result of this relatively short
marriage and therefore she had no additional need requiring
alimony, see Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173,
the court’s factual and legal analysis is simply too terse to permit
us to reach such a conclusion on appeal, see Bell v. Bell, 810 P.2d
489, 492 (Utah Ct. App. 1991) (‚*W+e must reverse unless the
record is clear and uncontroverted such as to allow us to apply
the [three alimony] factors as a matter of law on appeal.‛).
Without more detailed factual findings that ‚include enough
subsidiary facts to disclose the steps by which the ultimate
conclusion *on alimony+ was reached,‛ see Hall v. Hall, 858 P.2d
1018, 1021 (Utah Ct. App. 1993), the factual record here does not
clearly support the court’s decision to deny alimony.

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Accordingly, we conclude that the trial court’s findings of fact on
the issue are insufficient.
IV. Attorney Fees
¶27 For similar reasons, we conclude that the trial court’s
findings of fact were not adequate to support its denial of Wife’s
request for attorney fees. A trial court has discretion to award
costs and attorney fees to either party in a divorce proceeding.
Utah Code Ann. § 30-3-3(1) (LexisNexis 2013). But ‚the award
[or denial of such fees] must be based on evidence of the
financial need of the receiving spouse, the ability of the other
spouse to pay, and the reasonableness of the requested fees.‛
Wilde v. Wilde, 969 P.2d 438, 444 (Utah Ct. App. 1998) (alteration
in original) (citation and internal quotation marks omitted).
‚Failure to consider these factors is grounds for reversal on the
fee issue.‛ Id. In Wilde, we reversed a trial court’s denial of
attorney fees where the court ‚ordered both parties to pay their
own attorney fees and costs, but made no findings regarding
defendant’s need for the award, the ability of the plaintiff to pay
fees or costs, or the reasonableness of *the+ requested fees.‛ Id.
Here, the court similarly concluded, ‚Each party should pay his
or her own attorney’s fees,‛ but it did not make any findings
regarding Wife’s financial need, Husband’s ability to pay, or the
reasonableness of the $2,200 fee Wife requested. The court’s
findings of fact are therefore not adequate to support its denial
of Wife’s request for attorney fees.
¶28 In connection with our remand on the alimony and
attorney fees issues, we express no opinion on whether either
ultimately should or should not be awarded—that is for the trial
court to determine on remand. Rather, we simply determine that
it is not apparent from the record before us that the court
followed the appropriate analytical path in reaching its
conclusion. See McPherson v. McPherson, 2013 UT App 302, ¶ 8
(noting that the appellate court’s comments on factual issues
before remand ‚were intended to guide and focus the trial

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court’s consideration . . . on an issue [the appellate court]
concluded had not been adequately addressed,‛ not ‚to
superimpose any particular findings of fact, limit the sound
exercise of the trial court’s discretion, or dictate any particular
result‛).
V. Conclusion
¶29 In summary, we affirm the trial court’s decision awarding
the marital home and custody of Daughter to Husband, and we
do not consider Wife’s claim that the court failed to award her a
portion of Husband’s 2011 tax refund because it is unpreserved.
However, we set aside the decision denying Wife alimony and
attorney fees and remand for the trial court to enter additional
findings of fact.