McQuarrie v. McQuarrie

2019 UT App 147
THE UTAH COURT OF APPEALS
M ELVIN C. M CQ UARRIE,
Appellant and Cross-appellee,
v.
JANETTE C OLLEDGE M CQ UARRIE,
Appellee and Cross-appellant.
Opinion
No. 20170956-CA
Filed August 29, 2019
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 084904419
James A. McIntyre and Richard R. Golden, Attorneys
for Appellant and Cross-appellee
Douglas B. Thayer, Andrew V. Wright, and Cole L.
Bingham, Attorneys for Appellee and
Cross-appellant
JUDGE K ATE A PPLEBY authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and DAVID N.
M ORTENSEN concurred.
APPLEBY, Judge:
¶1 	Melvin C. McQuarrie appeals the district court’s order
dismissing 	his 	counter-petition 	to 	modify 	a 	divorce 	decree
(Decree). He argues the court erred in determining that his
alimony obligation did not terminate when Janette Colledge
McQuarrie remarried. Janette1 cross-appeals, arguing the court
1. As is our practice when the parties have the same last name,
we refer to them by their first names with no disrespect intended
by the apparent informality.

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erred in calculating her attorney fees award and in denying
portions 	of 	her 	motion 	for 	an 	order 	to 	show 	cause 	why
Melvin should not be held in contempt of court (Show Cause
Motion). 	We 	affirm 	the 	district 	court’s 	determination 	that
Melvin’s 	alimony 	obligation 	continued 	after 	Janette’s
remarriage. We conclude the court abused its discretion 	in
denying 	portions 	of 	the 	Show 	Cause 	Motion 	but 	not 	in
calculating Janette’s attorney fees award. We therefore affirm in
part, 	reverse 	in 	part, 	and 	remand 	for 	further 	proceedings
consistent with this opinion.
BACKGROUND
¶2 	Janette 	and 	Melvin 	divorced 	in 	2008, 	and 	a 	Decree
was entered pursuant to a mediated stipulation for divorce.
The Decree named Janette primary caregiver to the parties’
minor child and ordered Melvin to pay $3,000 per month in
child support until the child reached “the age of 26 or so long
as [the child remained] a college student, whichever occur[red]
later.” A child support obligation worksheet was attached to
the stipulation. In that worksheet, the parties acknowledged
that 	Janette’s 	child 	support 	award 	was 	greater 	than 	the
amount set by the statutory guidelines and indicated that the
reason for the upward deviation was the parties’ “property
settlement.”
¶3 	The Decree ordered Melvin to pay “$2,000.00 per month
as alimony with a cost of living increase up to 3% per annum”
while child support continued. After child support terminated,
alimony would be “adjusted pursuant to the sum set forth
in ‘Exhibit C’ to the [parties’ stipulation], with a cost of living
increase of up to 3% per annum.” Exhibit C is a spreadsheet
that appears to summarize the payments and assets Janette
would receive under the stipulation. It lists yearly payments
from 	2008 	to 	2039 	(372 	months) 	in 	each 	of 	the 	following
categories: 	(1) Alimony 	and 	Child 	Support, 	(2) 	Taxes 	on

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Alimony, (3) Health Insurance, (4) Car Allowance, (5) Utilities
and Property Taxes, and (6) House Maintenance. Exhibit C
also provides sums labeled “House Value,” “New Furniture,”
and “Personal Assets,” as well as a sum labeled “Total Net
Present 	Value.” 	The 	alimony 	and 	child 	support 	category
provides 	for 	a 	$5,000 	payment 	in 	2008, 	and 	the 	payment
increases each year until the final payment of $12,500.40 in 2039.
The Decree states that alimony will continue “until the first of
any 	of 	the 	following 	occurrences: 	[Melvin’s] 	death; 	[t]he
expiration of 372 months from the signing of the [Decree]; or
[Janette’s] death.”
¶4 	The 	Decree 	ordered 	Melvin 	to 	purchase 	a 	$1,000,000
annuity for Janette within “[t]hirty-six months after the signing
of the [Decree].” Janette was “to be irrevocably designated as
the beneficiary of the annuity during her lifetime with the
power to designate any blood relative as the beneficiary of
any death benefit provided by the annuity” and was to dictate
a “payout duration in excess of fifteen years.” The Decree said
it was “anticipated that the annuity [would] provide a stream
of income to [Janette] for her lifetime sufficient to supplement
what [Melvin] pays as alimony.” In a footnote, the Decree
ordered 	Janette 	and 	Melvin 	to 	meet 	every 	three 	years 	“at
the 	Hyatt 	Regency, 	or 	comparable 	hotel, 	in 	San 	Diego,
California” “without spouses or attorneys” “to review their
respective standard of living.” To maintain an “equal” standard
of living, the footnote also permitted “an upward adjust[ment]
of alimony . . . , but never a downward adjustment.”
¶5 	Next, the Decree “divided and awarded” the parties’
property and their “marital debts and obligations.” Janette was
awarded 	the 	parties’ 	marital 	house. 	The 	Decree 	ordered
Melvin 	to 	pay 	various 	expenses 	related 	to 	the 	house, 	and
those 	payments 	were 	listed 	in 	sub-paragraphs 	18(a)–(g).
Sub-paragraph 18(a) ordered Melvin “to satisfy the monthly
payments owing on the first deed of trust,” and sub-paragraphs
18(b)–(g) ordered him to, among other things, pay the “real

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property 	taxes 	and 	homeowner’s 	insurance” 	until 	the 	first
deed of trust was satisfied. But paragraph 21 provides, “Upon
[Melvin’s] purchase of the annuity . . . [his] responsibility for the
payments 	outlined 	in 	paragraph 	18(b)–(g) 	is 	ordered 	to
cease and [his] obligation with respect to those items will be
at an end.” 	The Decree states that “[Melvin’s] 	payment of
the 	first 	deed 	of 	trust, 	the 	real 	property 	taxes, 	and 	the
homeowner’s 	insurance 	constitutes 	a 	part 	of 	the 	property
settlement.” 	Janette 	also 	received 	an 	award 	of 	“one-half 	of
[Melvin’s] 401(k) retirement benefits accrued during the parties’
marriage.”
¶6 	As “part of the property settlement agreed upon by the
parties,” the Decree ordered Melvin to permanently “employ
[Janette] with one of his companies” and, as a benefit of that
employment, the company was required to “pay for [Janette’s]
health 	insurance 	premiums 	for 	as 	long 	as 	[she] 	require[d]
medical 	insurance.” 	The 	Decree 	also 	ordered 	Melvin 	to
“maintain medical insurance for the medical expenses of the
[parties’] 	minor 	child” 	and 	to 	“pay 	for 	the 	minor 	child’s
out-of-pocket costs” and “uninsured medical expenses.” The
Decree ordered that if Janette incurred “medical expenses on
behalf of the minor child,” she was to either “provide written
verification of the cost and payment of the medical expenses she
paid 	on 	the 	minor 	child’s 	behalf” 	to 	Melvin 	or 	make
arrangements 	“so 	that 	[Melvin] 	may 	be 	billed 	directly.”
Following the provisions dealing with medical insurance, the
Decree states that “[t]he payment of [Janette’s] health insurance
premiums and uncovered medical expenses constitute a portion
of the property settlement.”
¶7 	Many 	of 	the 	Decree’s 	provisions 	mention 	Janette’s
potential 	remarriage, 	and 	the 	Decree 	provides 	that 	certain
obligations 	will 	terminate 	if 	she 	remarries. 	For 	example,
sub-paragraph 7(a) states that Melvin “shall not be responsible
for any medical premium, prescription, out of pocket, or co-pay
expense related to [Janette’s] future spouse, or spouse’s children.”

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(Emphasis added.) Paragraph 11 allows Janette “to designate
any 	blood 	relative 	as 	the 	beneficiary 	of 	any 	death 	benefit
provided by the annuity,” but “in the event she remarries, she may
not 	designate 	her 	spouse 	or 	his 	children 	as 	beneficiaries.”
(Emphasis added.) Paragraph 28 provides, “In the event [Janette
was] 	unmarried, 	commencing 	in 	2011, 	and 	every 	five 	years
thereafter so long as [Janette] remain[ed] single, [Melvin was]
ordered to purchase or lease for [her] . . . a model year 2012
Cadillac Escalade, or equivalent.” (Emphasis added.) Under
paragraph 19, “should [Janette] remarry,” Melvin shall “continue
to pay the first deed of trust until it is paid in full” but he will be
“relieved of any and all obligations to pay and maintain the
items 	in . 	. . 	sub-paragraphs 18(b)–(g).” 	(Emphasis added.)
Finally, paragraph 29 provides that the parties cannot divest
assets 	to 	a 	future 	spouse, 	and 	paragraph 	30 	prohibits 	the
disclosure of any settlement or of the terms of the Decree to
future spouses. The Decree does not contain a separate provision
addressing 	whether 	Melvin’s 	alimony 	obligation 	would
terminate or continue if Janette remarried.
¶8 	Janette remarried in 2014. That year, she filed a petition to
modify 	the 	Decree 	(Petition 	to 	Modify) 	based 	on 	Melvin’s
alleged fraud. She claimed Melvin did not disclose certain assets
and “misrepresented the value of the marital home . . . for
purposes of inducing her to enter into the property settlement.”
Janette also filed the Show Cause Motion, asserting Melvin
should be held in contempt of court for, among other things,
failing to pay a cost of living increase on the alimony award,
Janette’s “uncovered” and “out-of-pocket medical expenses,”
and “one-half of [his] 401(k),” and for failing to purchase the
$1,000,000 annuity.
¶9 	Melvin 	filed 	a 	counter-petition 	to 	modify
(Counter-petition). He asserted Janette’s remarriage constituted
“a substantial and material change in the parties’ circumstances”
that justified terminating his alimony obligation. Specifically, he
argued that alimony terminated as a matter of law upon Janette’s

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remarriage because the Decree did not “specifically provide
otherwise.” See Utah Code Ann. § 30-3-5(9) (LexisNexis Supp.
2018) 	(“Unless 	a 	decree 	of 	divorce 	specifically 	provides
otherwise, any order of the court that a party pay alimony to a
former spouse automatically terminates upon the remarriage or
death of that former spouse.”).
¶10 	After 	a 	hearing, 	a 	court 	commissioner 	entered 	a
recommendation on the Petition to Modify, the Show Cause
Motion, and the Counter-petition. To start, the commissioner
recommended denying Melvin’s request to terminate alimony.
The commissioner reasoned, “[A]lthough the decree does not
state alimony will not terminate upon remarriage, the Decree is
clear on its face considering all the other references to remarriage
in the other provisions . . . that the parties intended for alimony
to survive remarriage.”
¶11 	Next, 	the 	commissioner 	addressed 	the 	Show 	Cause
Motion, beginning with the cost of living adjustment to alimony.
First, the commissioner concluded that the alimony provisions
established “a cost of living increase of up to 3% per annum (and
never downward),” but that the actual increase was “to be
determined by the Consumer Price Index [(CPI)].” Second, the
commissioner concluded “the Decree does not require [Melvin]
to pay for [Janette’s] out of pocket medical costs.” Third, the
commissioner found “the payment of half of [Melvin’s] 401(k)
account ha[d] been satisfied . . . by [Melvin’s] payment to
[Janette] in the amount of $8,885.52.” Fourth, because Melvin did
not purchase the annuity within thirty-six months of the entry of
the Decree, the commissioner recommended that Janette receive
“a judgment in an amount sufficient to compensate her for the
loss of the stream of income, past and future, from the ordered
annuity.” But if Melvin purchased “an annuity which pa[id]
$6,728.63 	per 	month 	for 	140 	months,” 	the 	commissioner
concluded “his purchase of the annuity [would] satisfy the
judgment 	entered 	against 	him.” 	The 	commissioner 	also
concluded that Melvin should receive “credit against the annuity

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judgment for payments he made . . . (that [Janette] would have
otherwise been paying herself out of the stream of income from
the annuity) . . . past the date that the annuity should have been
purchased.”
¶12 	Janette 	filed 	an 	objection 	to 	the 	commissioner’s
recommendation. First, she claimed the cost of living adjustment
to alimony should “be a straight 3% each year,” regardless of
the CPI. Second, she asserted Melvin should not receive credits
against 	his 	annuity 	obligation 	for 	payments 	listed 	in 	sub-
paragraphs 18(b)–(g) of the Decree because those payments
“were to continue until [he] purchased the annuity—which he
did 	not 	do.” 	She 	objected 	to 	the 	recommended 	amount
for 	Melvin’s 	annuity 	obligation, 	claiming 	the 	written
recommendation 	differed 	from 	what 	the 	commissioner
orally recommended at the hearing. Third, she argued that
Melvin had not paid her half the value of his 401(k) account.
Fourth, 	she 	asserted 	Melvin 	should 	pay 	her 	out-of-pocket
medical 	expenses 	because 	“the 	Decree 	clearly 	states 	that
[Melvin’s] payment of [Janette’s] health insurance premiums and
uncovered medical expenses constitute a portion of the property
settlement.”
¶13 	After a period of discovery, Janette filed a motion to limit
issues for trial. While that motion was pending, Melvin filed a
motion for partial summary judgment on his claim that alimony
terminated as a matter of law when Janette remarried because
the Decree did not “specifically provide otherwise.” The court
scheduled a hearing on the motion to limit issues for trial, and
the court commissioner scheduled a hearing on the motion for
partial summary judgment.
¶14 	At the hearing on the motion to limit issues for trial, the
district court told the parties it wanted to “simply have a
discussion” 	about 	the 	case. 	It 	explained 	that 	the 	parties’
stipulation that “made the basis of the [Decree was] going to be
followed” and the only issue worth pursuing in the case was

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“the possibility of the allegation of fraud.” The court determined
that 	alimony 	did 	not 	terminate 	upon 	Janette’s 	remarriage
because the Decree “could be fairly read and interpreted that the
parties either negotiated away—or clearly understood . . . what
those alimony provisions were.” And “[e]ven though they may
have been characterized as . . . alimony, when you look at the
way they were treated, . . . it clearly looks to be . . . that it was
a—in a way, a property settlement agreement.” The court also
said 	“you 	could 	interpret 	[the 	Decree] 	to 	read 	the 	parties
specified, clearly, the terms of—as it relates to the alimony and
waived, knowingly, the statutory benefit that they would have
had on the issue of remarriage.”
¶15 	The court also expressed skepticism toward the merits
of the Petition to Modify. It said, “I don’t have any indications
of all the facts or the evidence, but I don’t see any fraud here.
Okay? There was negotiation and understanding with respect
to what the settlement agreement was.” But “[i]f there really
was two or three items left out of this property agreement,” the
court explained, “whether they were left out intentionally, on
purpose, [or] negligently, . . . fairness and equity would clearly
require that they be looked at.” Janette responded that she was
“willing to waive that claim altogether” and then said, “that
leaves us—there’s nothing else to decide . . . other than the issue
of fees.”
¶16 	Melvin informed the court that a summary judgment
motion on “the issue of remarriage and the fact that the [Decree]
does not specifically provide that alimony doesn’t terminate
upon 	remarriage 	. 	. 	. 	[was] 	before 	the 	commissioner 	[the
following] 	week.” 	After 	acknowledging 	the 	commissioner’s
order 	determining 	that 	alimony 	did 	not 	terminate 	upon
remarriage—which was signed by the district court—Melvin
said 	he 	would 	“like 	to 	have 	[the 	commissioner] 	have 	the
opportunity to make a recommendation” with “the benefit of the
[new] briefing that’s involved . . . [and] there are several more
recent Utah Court of Appeals and Supreme Court cases that bear

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on the issue.” The court responded, “If you want to try to get a
second bite at the apple and convince [the commissioner], that’s
fine.”
¶17 	But the court concluded that it was “ready to issue an
order of dismissal”2 and saw no “need to set trial,” and turned
to 	address 	Janette’s 	request 	for 	attorney 	fees. 	The 	court
determined 	she 	was 	entitled 	to 	fees 	“that 	relate 	to 	the
enforcement in the first place and the requirement for [Melvin]
to give the annuity and to comply with the other terms and
provisions” of the Decree. Specifically, the court found that
Janette was the prevailing party on the Show Cause Motion,
explaining that “the hearings brought up such quick decisions . .
. [b]ecause [Melvin] was not in compliance with the [Decree].”
But 	the 	court 	said 	it 	would 	view 	other 	fees 	“with 	some
skepticism” because both parties “lost on [their petitions to
modify] with respect to not being able to prove a substantial
material change in circumstances.”
¶18 	Although the district court dismissed the case, the court
commissioner nevertheless held a hearing on Melvin’s motion
for 	partial 	summary 	judgment 	and 	recommended 	that 	the
motion 	be 	denied. 	Melvin 	filed 	an 	objection 	to 	the
commissioner’s 	recommendation, 	asserting 	again 	that 	Utah
Code 	section 	30-3-5(9) 	required 	termination 	of 	his 	alimony
obligation. 	The 	court 	rejected 	Melvin’s 	objection 	to 	the
recommendation and entered an order denying his motion for
summary judgment.
2. We are puzzled by this “dismissal.” What began as a pre-trial
hearing appears to have resulted in the court’s dismissal of both
petitions to modify. In Janette’s case, this appears to have been
because she waived the basis for the Petition to Modify at the
hearing on the motion to limit issues; in Melvin’s case, the
dismissal ruling was made even though a motion for partial
summary judgment was still pending.

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¶19 	The court then entered an order memorializing its verbal
dismissal of the Petition to Modify and the Counter-petition. It
found “that the Stipulation and Decree between the parties
[would] be followed as written.” And after reviewing “all the
language in the Decree,” it concluded the alimony provisions
“were not something that would be terminated or eliminated
based upon the remarriage of [Janette].” That is, it found “that
the Decree language specifically provides that the alimony/child
support payments would continue beyond remarriage and were
structured to provide the appropriate division of the marital
assets to 	[Janette].” 	The 	order 	also 	stated 	the 	court 	would
“award [Janette’s] attorney’s fees regarding her attempts to
enforce the Decree’s terms” and requested that Janette “submit
the required affidavit on [her] attorney’s fees.”
¶20 	After the petitions had been dismissed, Janette filed a
request 	to 	submit 	for 	decision 	her 	objection 	to 	the
commissioner’s recommendation on the Show Cause Motion.
The 	court 	denied 	Janette’s 	objection. 	It 	explained, 	“[T]he
recommendation signed by the commissioner and the court is
the order that will be complied with by the parties as the court
has not found the commissioner erred as a matter of law and the
court 	independently 	agrees with 	the 	decision 	made 	by 	the
commissioner.”
¶21 	Janette 	submitted 	an 	attorney 	fees 	declaration 	that
claimed she incurred $302,602 in attorney fees throughout the
case with $275,659 “incurred in [her] efforts to enforce the terms
of the [Decree]” and $61,448 relating “to the prosecution of [the
Show Cause Motion].” Janette then filed a proposed order with
an award of $275,659 in attorney fees. The court responded with
a 	notice 	titled 	“Not 	Signed 	Order 	(Proposed) 	Awarding
Attorney Fees and Costs.” The notice stated that “the only fees
that [would] be awarded [were] those the court already so stated
for the [Show Cause 	Motion].” Janette then filed a 	second
proposed order with an award of $61,448 in attorney fees. Again,
the court refused to sign the proposed order and noted, “These

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fees are not reasonable for an [order to show cause] hearing
before the commissioner and then the court.[3] The court will
issue a ruling on the amount to be awarded.”
¶22 	The court entered an order awarding Janette $9,480 in
attorney fees. The order provided, “While both parties prevailed
on some issues and were less successful on others, [Janette] was
the prevailing party in relation to the prosecution of [the Show
Cause Motion].” And “having conducted a review of the entries
attached to the [attorney fees affidavit],” the court concluded
that $9,480 “incurred in fees was reasonable and necessary in
relation to the prosecution of the [Show Cause Motion].”
¶23 	Melvin appeals; Janette cross-appeals.
ISSUES AND STANDARDS OF REVIEW
¶24 	Melvin argues the district court erred in determining that
his alimony obligation survived Janette’s remarriage. This issue
requires us to review the court’s interpretation of the Decree as
well as its interpretation and application of Utah Code section
30-3-5(9). “Interpretation of a divorce decree presents a question
of law, which is reviewed for correctness.” Gardner v. Gardner,
2012 UT App 374, ¶ 14, 294 P.3d 600. “The proper interpretation
and application of a statute is [also] a question of law which we
review for correctness.” Veysey v. Veysey, 2014 UT App 264, ¶ 7,
339 P.3d 131 (quotation simplified).4
3. Again, we are puzzled. Our review of the record suggests that
there was no show cause hearing before the district court.
4. Melvin also argues the district court denied him “the right to
adequate notice and a fair hearing on the issues he presented” by
dismissing the Counter-petition. This issue was not preserved
for 	appeal. 	To 	preserve 	an 	issue 	for 	appeal, 	a 	party 	must
(continued…)

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¶25 	Janette cross-appeals, raising two issues. First, she argues
“the district court erred in denying portions of [the Show Cause
Motion]” by misinterpreting and misapplying the Decree. “An
order relating to contempt of court is a matter that rests within
the sound discretion of the district court.” Wolferts v. Wolferts,
2013 UT App 235, ¶ 8, 315 P.3d 448 (quotation simplified). “In
the absence of any action by the [district] court which is so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion, we will not overturn the [district]
court’s order.” Dansie v. Dansie, 1999 UT App 92, ¶ 6, 977 P.2d
539 	(quotation 	simplified). 	“We 	review 	the 	district 	court’s
findings of fact for clear error and its legal determinations for
correctness.” LD III LLC v. Davis, 2016 UT App 206, ¶ 12, 385
P.3d 689 (quotation simplified).
(…continued)
specifically and timely raise the issue before the district court
and “introduce supporting evidence or relevant legal authority.”
O’Dea 	v. 	Olea, 	2009 	UT 	46, 	¶ 	18, 	217 	P.3d 	704 	(quotation
simplified). A review of the record reveals that Melvin did not
present his due process argument to the district court, and
therefore the court “did not have the opportunity to give full
consideration to the issue[] at that time.” See id. ¶ 19. Further,
Melvin’s principal appellate brief does not assert an exception to
the preservation rule, and only in his reply brief does he argue
“the [district] court committed plain error and the circumstances
are exceptional.” Because Melvin has “not argued an exception
to our preservation requirement to persuade us to reach” this
issue, we do not consider it further. See True v. Utah Dep’t of
Transp., 2018 UT App 86, ¶ 22, 427 P.3d 338; see also Marcroft v.
Labor Comm’n, 2015 UT App 174, ¶ 4, 356 P.3d 164 (“[W]e have
consistently refused to consider arguments of plain error raised
for the first time in an appellant’s reply brief, even if the plain
error argument is in response to a dispute over preservation
raised for the first time in the appellee’s brief.” (quotation
simplified)).

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¶26 	Second, Janette argues the district court erred in awarding
her only $9,480 in attorney fees. “We review a [district] court’s
decision regarding attorney fees in a divorce proceeding for an
abuse of discretion.” Jensen v. Jensen, 2008 UT App 392, ¶ 8, 197
P.3d 117.
ANALYSIS
I. Alimony
¶27 	Melvin 	argues 	his 	alimony 	obligation 	automatically
terminated upon Janette’s remarriage because the Decree did not
“specifically provide otherwise.” See Utah Code Ann. § 30-3-5(9)
(LexisNexis Supp. 2018). We disagree.
¶28 	“Alimony is presumed to terminate upon the remarriage
of the receiving spouse.” Johnson v. Johnson, 855 P.2d 250, 252
(Utah Ct. App. 1993). Utah courts have long recognized this
presumption, see, e.g., Austad v. Austad, 269 P.2d 284, 290 (Utah
1954) (“[T]here is implicit in the divorce decree the provision
that the alimony continues only so long as the [receiving spouse]
remains unmarried.”), and it is now codified in Utah Code
section 30-3-5(9). That provision provides, “Unless a decree of
divorce specifically provides otherwise, any order of the court
that a party pay alimony to a former spouse automatically
terminates upon the remarriage or death of that former spouse.”
Utah Code Ann. § 30-3-5(9).
¶29 	Here, the Decree was entered by default “pursuant to the
terms set forth in” Melvin and Janette’s “mediated stipulation
for divorce.” “[I]n the context of a divorce, parties are generally
bound by their stipulations.” Thayer v. Thayer, 2016 UT App 146,
¶ 17, 378 P.3d 1232. “Accordingly, we interpret [the Decree]
according to established rules of contract interpretation.” Id.
(quotation simplified). “The underlying purpose in interpreting
a contract is to ascertain the intentions of the parties to the

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contract.” Id. (quotation simplified). To do that, “we look to the
plain meaning of the contractual language, and we consider each
contract provision in relation to all of the others, with a view
toward giving effect to all and ignoring none.” Id. (quotation
simplified).
¶30 	The 	Decree 	does 	not 	identify 	Janette’s 	remarriage 	as
an 	event 	that 	will 	terminate 	Melvin’s 	obligation 	to 	pay
alimony. Instead, paragraph 10 orders Melvin to make alimony
payments “until the first of any of the following occurrences:
[Melvin’s] death; [t]he expiration of 372 months from the signing
of the [Decree]; or [Janette’s] death.” As Janette notes in her brief,
“‘the specification of terms in a contract implies the exclusion of
all not expressed.’” (Quoting 17A C.J.S. Contracts § 415.) And
absent the statute, we would infer that the parties intended
alimony 	to 	survive 	Janette’s 	remarriage 	based 	on 	their
decision 	to 	omit 	remarriage 	from 	paragraph 	10’s 	list 	of
terminating events. See Martin v. Rasmussen, 2014 UT App 200,
¶ 18, 334 P.3d 507 (“This court will not rewrite a contract
to 	supply 	terms 	which 	the 	parties 	omitted.” 	(quotation
simplified)). But our precedent establishes that paragraph 10,
without more, does “not provide for an exception to the general
rule.” 	See 	Lord 	v. 	Shaw, 	682 	P.2d 	853, 	855 	(Utah 	1984)
(determining that a divorce decree stating “alimony is to run for
a period of three years” did “not provide for an exception to the
general 	rule 	that 	alimony 	terminates 	upon 	remarriage”),
disavowed on other grounds by Bailey v. Sound Lab, Inc., 694 P.2d
1043 (Utah 1984); see also Eames v. Eames, 735 P.2d 395, 398–99
(Utah Ct. App. 1987) (Orme, J., dissenting in part) (rejecting the
“frivolous” 	argument 	that 	language 	in 	a 	divorce 	decree
providing “alimony would continue until [the receiving party]
reached 65” without referring to “earlier termination upon . . .
remarriage” 	“might 	be 	deemed 	to 	mean 	the 	decree 	had
‘specifically provided otherwise’ and required alimony to be
paid until age 65 regardless of whether [the receiving party]
remarried” (quotation simplified)).

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20170956-CA 	15 	2019 UT App 147
¶31 	Nevertheless, our analysis must consider paragraph 10
“in relation to” each of the Decree’s other provisions, “with a
view toward giving effect to all and ignoring none.” See Thayer,
2016 UT App 146, ¶ 17 (quotation simplified). And based on our
review of the Decree “as a whole,” we conclude that its language
specifically 	provides 	that 	alimony 	would 	survive 	Janette’s
remarriage. See id. For example, paragraphs 19 and 28 state that
certain 	payments—the 	car 	allowance 	and 	various 	expenses
related to the marital house—would terminate upon Janette’s
remarriage. These provisions strengthen an inference that the
parties intentionally omitted remarriage from paragraph 10.
¶32 	We also find it significant that paragraph 10 includes
Janette’s death as a terminating event. The statute creates a
presumption that alimony “terminates upon the remarriage or
death” of the receiving spouse. Utah Code Ann. § 30-3-5(9)
(emphasis added). If the parties intended alimony to terminate
either upon Janette’s death or remarriage, the reasonable action
would have been to allow the statute to govern either event or
include them both in paragraph 10. Indeed, listing Janette’s
death as a terminating event would have been unnecessary
under those circumstances, and it seems the parties’ decision to
do so would be rendered meaningless if we were to conclude
that alimony also terminated upon Janette’s remarriage. The
rules of contract interpretation dictate that we avoid such a
result. See Fisher v. Davidhizar, 2018 UT App 153, ¶ 16, 436 P.3d
123 (“In interpreting a contract, . . . we look for a reading that
harmonizes the provisions and avoids rendering any provision
meaningless.” (quotation simplified)).
¶33 	Further, footnote 4 orders Melvin and Janette to meet
every three years—without spouses—“to review their respective
standard of living” and potentially adjust alimony upward to
comply with the order that “the standard of living . . . be equal.”
(Emphasis added.) The same footnote prohibits Janette and
Melvin 	from 	“sharing 	any 	documentation 	or 	making 	any
disclosure 	regarding 	the 	[parties’ 	stipulation] 	with 	future

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spouses,[5] [or] spouses’ children.” (Emphasis added.) We cannot
ignore this provision, which orders the parties to discuss and
potentially 	adjust 	alimony 	even 	after 	Janette’s 	potential
remarriage.
¶34 	Melvin attempts to diminish footnote 4’s significance by
claiming our interpretation “requires [us] to assume that one of
the spouses would be [Janette’s] spouse.” That is, he asserts “it is
equally logical that over a period of more than thirty years
[Melvin] 	might 	remarry 	more 	than 	once 	and 	thus 	have
[multiple] spouses who would be excluded from the meeting or
from knowledge of the negotiations.” This argument is not well
taken. Although Melvin possibly could have a current spouse as
well as multiple former spouses at the time of the triennial
review, we do not assume that the parties anticipated Melvin
having multiple spouses at the same time. Instead, the only
reasonable interpretation of this provision establishes that the
spouse of each party who is married at the time of the review is
prohibited from attending. And because footnote 4 contemplates
the parties discussing alimony during the triennial review, it
shows a clear intent that those payments would not terminate
upon Janette’s remarriage. Moreover, any other interpretation
would render this provision meaningless.
¶35 	As outlined above, see supra ¶ 7, the Decree is replete with
references to future spouses. The Decree’s provisions delineate
obligations, but they expressly exclude a future spouse or that
spouse’s children. Janette is allowed to designate a beneficiary
for a required annuity, but she expressly may not designate a
future spouse or that spouse’s children. The requirement for
Melvin to pay off the marital house’s mortgage continues even if
Janette remarries. Finally, the Decree prohibits divestiture of
assets or the disclosure of the terms of the Decree to a future
5. “Spouse” is defined as “[o]ne’s husband or wife by lawful
marriage.” Spouse, Black’s Law Dictionary 1533 (9th ed. 2009).

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20170956-CA 	17 	2019 UT App 147
spouse. These provisions lead us to conclude that the parties
considered Janette’s potential remarriage and specifically agreed
on how that event would affect their respective rights and
obligations 	under 	the 	Decree. 	Accordingly, 	the 	only
“reasonable” interpretation of the Decree as a whole is that
alimony terminates only as expressly provided in paragraph 10.
See Peirce v. Peirce, 2000 UT 7, ¶ 19, 994 P.2d 193 (“[W]e interpret
the terms of a contract in light of the reasonable expectations of
the parties, looking to the agreement as a whole and to the
circumstances, nature, and purpose of the contract.” (emphasis
added)).
¶36 	Therefore, we conclude that Melvin’s alimony obligation
did 	not 	automatically 	terminate 	upon 	Janette’s 	remarriage,
because the Decree “specifically provides otherwise,” Utah Code
Ann. § 30-3-5(9), and we affirm the district court’s dismissal of
Melvin’s petition to terminate alimony.
II. Show Cause Motion
¶37 	The Show Cause Motion asked the district court to hold
Melvin in contempt of court for not complying with various
provisions of the Decree. Janette argues the court “erred in
denying portions of [the Show Cause Motion] because it failed to
interpret and give the terms of the Decree the effect the plain
language called for.”
¶38 	“Disobedience of any lawful judgment or order of the
court is contempt of the authority of the court.” Clarke v. Clarke,
2012 UT App 328, ¶ 24, 292 P.3d 76 (quotation simplified); see
also Utah Code Ann. § 78B-6-301(5) (LexisNexis 2018). To “prove
contempt for failure to comply with a court order it must be
shown that the person cited for contempt knew what was
required, had the ability to comply, and intentionally failed or
refused to do so.” Clark, 2012 UT App 328, ¶ 24 (quotation
simplified). “Once the court finds a person in contempt, it may
then 	elect 	to 	impose 	an 	appropriate 	sanction.” 	Gardner 	v.

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20170956-CA 	18 	2019 UT App 147
Gardner, 2012 UT App 374, ¶ 32, 294 P.3d 600. An appropriate
sanction may include monetary damages “if an actual loss or
injury to a party in an action is caused by the contempt.” In re
Cannatella, 	2006 	UT 	App 	89, 	¶ 	7, 	132 	P.3d 	684 	(quotation
simplified).
¶39 	“The rule of damages in a contempt case is the same as if
the 	party 	were 	being 	proceeded 	against 	directly 	on 	the
underlying obligation.” Bradshaw v. Kershaw, 627 P.2d 528, 532
(Utah 1981). The court’s order should seek to compensate the
aggrieved party for the “actual loss or injury” caused by the
contempt. Utah Code Ann. § 78B-6-311(1) (allowing courts to
“order the person proceeded against to pay the party aggrieved
a sum of money sufficient to indemnify and satisfy the aggrieved
party’s costs and expenses”); see also Goggin v. Goggin, 2013 UT
16, ¶ 37, 299 P.3d 1079 (“Because these awards compensated [the
aggrieved party] for the actual loss or injury that [the contempt]
caused, 	they 	were 	proper 	under 	the 	Contempt 	Statute.”
(quotation 	simplified)). 	Further, 	the 	court’s 	calculation 	of
damages should be supported by evidence of the aggrieved
party’s loss. See Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342
P.3d 	1127 	(explaining 	that 	the 	evidence 	must 	“provide 	a
reasonable, even though not necessarily precise, estimate of
damages” (quotation simplified)).
¶40 	Janette 	raises 	four 	issues 	regarding 	the 	Show 	Cause
Motion. First, she challenges the court’s conclusion that Melvin
was not required “to pay [her] out of pocket medical expenses.”
Second, she claims the court erred in determining that the yearly
cost of living increase to Melvin’s alimony obligation “could be
less than 3%.” Third, she contends the court provided Melvin
with a “windfall” by not requiring him to purchase an annuity
that complied with “the terms of the annuity [he] was obligated
to purchase” and by awarding him credit against the annuity
judgment to which he was not entitled. Fourth, she argues the
court erred in determining “Melvin satisfied his obligation to
pay [her] half of his 401(k).” We address each argument in turn.

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20170956-CA 	19 	2019 UT App 147
A. 	Out-of-Pocket Medical Costs
¶41 	In the Show Cause Motion, Janette moved the district
court to hold Melvin in contempt for refusing to “pay for all
of [her] uncovered medical expenses.” The court denied her
motion after determining the Decree did not require Melvin to
make any such payment. Janette argues the court’s decision was
“contrary to the Decree’s plain and unambiguous language.” We
disagree.
¶42 	“We interpret a divorce decree according to established
rules of contract interpretation.” Moon v. Moon, 1999 UT App 12,
¶ 	18, 	973 	P.2d 	431 	(quotation 	simplified). 	“The 	underlying
purpose in interpreting a contract is to ascertain the intentions of
the parties to the contract. To ascertain the parties’ intentions, we
look to the plain meaning of the contractual language, and we
consider each contract provision in relation to all of the others.”
Thayer v. Thayer, 2016 UT App 146, ¶ 17, 378 P.3d 1232 (quotation
simplified).
¶43 	A review of the Decree “as a whole” leads us to conclude
that Melvin was not required to pay for Janette’s personal
out-of-pocket medical costs. Paragraph 7 of the Decree orders
Melvin 	to 	employ 	Janette 	with 	one 	of 	his 	companies 	and
requires 	that 	company 	to 	“pay 	for 	[her] 	health 	insurance
premiums for so long as [she] requires medical insurance.”
Paragraph 	7 	does 	not 	state 	that 	Melvin 	must 	pay 	any 	of
Janette’s out-of-pocket costs. In contrast, paragraph 6 orders
Melvin 	to 	“maintain 	medical 	insurance 	for 	the 	medical
expenses 	of 	the 	[parties’] 	minor 	child . . . through 	[his]
employment” and “pay for the minor child’s out-of-pocket costs of
the premium for the child’s portion of the insurance.” (Emphasis
added.) Paragraph 6 also requires Melvin to “pay for the minor
child’s 	reasonable 	and 	necessary 	uninsured 	medical 	expenses,
including deductibles and co-payments, incurred for the parties’
minor child.” (Emphasis added.) 	Under sub-paragraph 6(a),
Janette must provide Melvin with written verification of any

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20170956-CA 	20 	2019 UT App 147
medical expenses “[she] incurs on behalf of the minor child . . .
within 30 days of payment” or make arrangements “so that
[Melvin] may be billed directly.” Janette’s argument relies on
sub-paragraph 	7(b), 	which 	provides 	that 	“[t]he 	payment 	of
[Janette’s] 	health 	insurance 	premiums 	and 	uncovered 	medical
expenses 	constitute 	a 	portion 	of 	the 	property 	settlement.”
(Emphasis added.)
¶44 	Because 	the 	Decree 	includes the 	child’s out-of-pocket
costs in paragraph 6 and omits Janette’s out-of-pocket costs
from paragraph 7, it seems the parties intended that Melvin
be 	responsible 	only 	for 	the 	out-of-pocket 	medical 	expenses
incurred 	for 	the 	child’s 	benefit—not 	those 	incurred 	for
the benefit of Janette. See Fisher v. Davidhizar, 2018 UT App 153,
¶ 16, 436 P.3d 123 (explaining that “we look for a reading
that 	harmonizes 	the 	provisions 	and 	avoids 	rendering 	any
provision meaningless” (quotation simplified)). If the parties
intended 	to 	require 	Melvin 	to 	pay 	Janette’s 	out-of-pocket
medical 	costs, 	they 	would 	have 	expressed 	such 	intent 	in
paragraph 7. Pioneer Builders Co. of Nevada Inc. v. K D A Corp.,
2018 UT App 206, ¶ 13, 437 P.3d 539 (“The cardinal rule in
contract interpretation is to give effect to the intentions of
the parties as they are expressed in the 	plain language of
the agreement itself.” 	(quotation 	simplified)). Sub-paragraph
7(b) does not alter the result. The only “uncovered medical
expenses” the Decree orders Melvin to pay are those incurred
on behalf of the child. Thus, we see no reason to conclude
that Janette’s personal out-of-pocket expenses were meant to
be included among the expenses mentioned in sub-paragraph
7(b).
¶45 	In sum, we reject Janette’s argument that “the Decree’s
plain 	and 	unambiguous 	language” 	requires 	Melvin 	to 	pay
Janette’s own uncovered medical expenses. Accordingly, we
affirm the district court’s decision to deny Janette’s motion to
hold Melvin in contempt for refusing to pay for those costs.

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20170956-CA 	21 	2019 UT App 147
B. 	Annual Adjustments to Alimony
¶46 	Janette argues the district court erred in determining that
the yearly cost of living increase to Melvin’s alimony obligation
“could be less than 3%.” We disagree. The Decree orders Melvin
to pay alimony, “with a cost of living increase of up to 3% per
annum (based upon the CPI, but never to be less than the
present 	amount 	being 	paid).” 	(Emphasis 	added.) 	This
unambiguous language does not support Janette’s argument that
the yearly increase must be at least 3%. See Brady v. Park, 2019 UT
16, ¶ 53, 445 P.3d 395 (“If the language within the four corners of
the 	contract 	is 	unambiguous, 	the 	parties’ 	intentions 	are
determined 	from 	the 	plain 	meaning 	of 	the 	contractual
language.” 	(quotation 	simplified)). 	That 	is, 	stating 	that 	the
increase will be up to 3% leaves open the possibility that the
increase may be lower than 3%. Janette argues that Exhibit C
to the parties’ stipulation shows that alimony was to increase
at a fixed rate of 3% per year because the yearly payments
for “Alimony/Child Support” listed on Exhibit C increase by
3% each year. But the Decree is clear. It sets a flexible standard
for the yearly increase to allow the parties to “equalize” their
respective standards of living. For example, footnote 4 allows the
parties to “include an upward adjustment to alimony beyond the
CPI.” Thus, the amounts listed in Exhibit C are merely estimates.
¶47 	In short, we see no support for Janette’s contention that
the yearly increase to alimony must be at least “a flat 3% per
year.” Accordingly, the court’s “interpretation of the [Decree]
was 	[not] 	erroneous 	as 	a 	matter 	of 	law,” 	and 	Janette 	has
therefore 	failed 	to 	“convince 	us 	that 	the 	[district] 	court
committed error.” See Christensen v. Christensen, 2018 UT App 53,
¶ 5, 420 P.3d 106 (quotation simplified).
C. 	Melvin’s Annuity Obligation
¶48 	The 	Decree 	ordered 	Melvin 	to 	purchase 	Janette 	a
$1,000,000 annuity within thirty-six months of the entry of the

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20170956-CA 	22 	2019 UT App 147
Decree. 	It is undisputed 	that Melvin 	did 	not 	purchase 	the
annuity 	within 	that 	period. 	Accordingly, 	the 	district 	court
entered a judgment against Melvin “in an amount sufficient
to compensate [Janette] for the loss of the stream of income,
past and future, from the ordered annuity.” The order allowed
Melvin 	to 	“satisfy 	the 	judgment 	entered 	against 	him” 	by
purchasing “an annuity which pays $6,728.63 per month for 140
months.” 	The 	court 	also 	awarded 	Melvin 	“credit 	against
the annuity judgment for payments he made to [Janette] for
[her] benefit (that [she] would have otherwise been paying
herself out of the stream of income from the annuity) past the
date that the annuity should have been purchased.”
¶49 	Janette argues the court abused its discretion by not
requiring Melvin to purchase an annuity that complied with
“the terms of the annuity [he] was obligated to purchase” and
by 	awarding 	him 	credit 	against 	the 	annuity 	judgment 	to
which he was not entitled. This argument has merit. Because the
evidence 	does 	not 	support 	the 	district 	court’s 	order, 	see
Valerios Corp. v. Macias, 2015 UT App 4, ¶ 24, 342 P.3d 1127
(explaining that the evidence must “provide a reasonable, even
though not necessarily precise, estimate of damages” (quotation
simplified)), and does not compensate Janette for the “actual loss
or injury” that Melvin caused her by failing to timely purchase
the annuity, see Utah Code Ann. § 78B-6-311(1) (LexisNexis 2018)
(allowing courts to “order the person proceeded against to
pay 	the 	party 	aggrieved 	a 	sum 	of 	money 	sufficient 	to
indemnify 	and 	satisfy 	the 	aggrieved 	party’s 	costs 	and
expenses”), we conclude the court’s ruling amounted to an abuse
of discretion.
¶50 	First, the evidence does not support the court’s decision to
award Melvin “credits toward the annuity price” for making the
payments listed in sub-paragraphs 18(b)–(g) “past the date that
the 	annuity 	should 	have 	been 	purchased.” 	Sub-paragraphs
18(b)–(g) ordered Melvin to pay various expenses related to the
marital 	house. 	But 	paragraph 	21 	states, 	“Upon 	[Melvin’s]

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20170956-CA 	23 	2019 UT App 147
purchase of the annuity . . . , [his] responsibility for the payments
outlined in paragraph 18(b)–(g) is ordered to cease.” Thus,
Melvin 	was 	obligated 	to 	make 	the 	payments 	listed 	in
sub-paragraph 18(b)–(g) until he purchased the annuity. Because
it is undisputed that Melvin did not timely purchase the annuity,
it follows that his obligation to make those payments did not
“cease” at the time the annuity should have been purchased.
Accordingly, we see no evidentiary basis for the court’s decision
to 	grant 	Melvin 	credit 	against 	the 	annuity 	judgment 	for
payments made under sub-paragraphs 18(b)–(g) “past the date
the annuity should have been purchased.” And we conclude that
doing so amounted to an abuse of discretion. See Gardner v.
Gardner, 2012 UT App 374, ¶ 33, 294 P.3d 600 (“[A]ny award of
damages 	must 	be 	based 	on 	something 	more 	than 	mere
speculation.”).
¶51 	Second, we agree with Janette that the district court
abused its discretion by allowing Melvin to satisfy the judgment
against him by purchasing an annuity that (1) did not list Janette
as the irrevocable beneficiary, (2) had a term fewer than fifteen
years, (3) was less than the face value of the annuity he was
obligated to purchase under the Decree, and (4) did not account
for the loss in value 	Janette incurred by 	Melvin failing to
purchase the annuity in a timely fashion. Although the court
concluded Janette was entitled to “a judgment in an amount
sufficient to compensate her for the loss of the stream of income,
past and future, from the ordered annuity,” its order allowed
Melvin to satisfy that judgment without compensating Janette
for 	the 	“actual 	loss or 	injury” 	that 	resulted 	from 	him 	not
fulfilling his obligations under the Decree. See Utah Code Ann.
§ 78B-6-311(1).
¶52 	The Decree ordered Melvin to purchase an annuity of
$1,000,000 and required its “payout duration” to be “in excess of
fifteen years.” Further, Janette was to “be irrevocably designated
as the beneficiary of the annuity during her lifetime with the
power to designate any blood relative as the beneficiary of any

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20170956-CA 	24 	2019 UT App 147
death 	benefit 	provided 	by 	the 	annuity.” 	In 	direct 	conflict
with those terms, the court’s order allowed Melvin to “satisfy
the 	judgment 	entered 	against 	him 	for 	the 	annuity” 	by
purchasing “an annuity which pays $6,728.63 per month for 140
months”—a total of $942,008 paid over a period of less than
twelve years. Further, the order did not satisfy the Decree’s
requirement 	that 	Janette 	“be 	irrevocably 	designated 	as 	the
beneficiary of the annuity.” Accordingly, we see no evidentiary
basis for the court’s order, and we agree with Janette that the
court abused its discretion by allowing Melvin a “windfall as a
result of his own breach.” See Valerios Corp., 2015 UT App 4, ¶ 24
(explaining that the evidence must “provide a reasonable, even
though not necessarily precise, estimate of damages” (quotation
simplified)).
¶53 	Because 	we 	see 	no 	evidence 	supporting 	the 	court’s
calculation of damages for Melvin’s failure to timely purchase
the annuity, we conclude its actions amount to “a clear abuse of
discretion.” 	Gardner, 	2012 	UT 	App 	374, 	¶ 	14 	(quotation
simplified). Accordingly, we reverse its order and remand for
further 	proceedings. 	On 	remand, 	the 	court 	should 	enter 	a
judgment against Melvin that adequately compensates Janette
for the “actual loss or injury” caused by Melvin’s failure to
purchase the annuity within thirty-six months after the Decree
was entered. See Utah Code Ann. § 78B-6-311(1).
D. 	401(k)
¶54 	Janette argues the district court erred in determining that
Melvin had “satisfied his obligation to pay [Janette] half of his
401(k).” We are not persuaded.
¶55 	The Decree awarded Janette “one-half of [Melvin’s] 401(k)
retirement 	benefits 	accrued 	during 	the 	parties’ 	marriage.”
Paragraph 16 provided for an “appropriate Qualified Domestic

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20170956-CA 	25 	2019 UT App 147
Relations Order [6] securing [Janette’s] interest in said retirement
plan,” but Melvin was “ordered to try and have the account
divided 	equally 	without 	the 	necessity 	of 	a 	QDRO.” 	In 	its
recommendation, 	the 	court 	commissioner 	found 	that 	“the
payment 	of 	half 	of 	[Melvin’s] 	401(k) 	account 	ha[d] 	been
satisfied . . . by 	[his] 	payment 	to 	[Janette] 	in 	the 	amount 	of
$8,885.52.” 	The 	district 	court 	approved 	the 	commissioner’s
determination.
¶56 	Janette 	challenges 	the 	court’s 	decision. 	She 	starts 	by
claiming Melvin’s “401(k) had a balance of $37,612.62” when the
Decree was entered on November 21, 2008. According to Janette,
Melvin 	“waited 	until 	February 	20, 	2009, 	to 	liquidate 	the
account”—about three months after the Decree was entered—
when 	“the 	account’s 	balance 	had 	allegedly 	dropped 	from
$37,612.62 to approximately $17,771.04.” Janette then argues that
because the Decree ordered Melvin to pay her one-half of the
account’s balance when the Decree was entered (which she
claims was $18,803.31), she was entitled to “a judgment against
[Melvin] in the amount of $9,922.79; i.e., the difference between
the amount received and half of the account’s balance when the
Decree was entered.”
¶57 	Janette has failed “to carry [her] burden of persuasion on
appeal.” See Bank of Am. v. Adamson, 2017 UT 2, ¶ 12, 391 P.3d
196 (quotation simplified). First, the record does not support
Janette’s assertion that the 401(k)’s balance was $37,612.62 when
the Decree was entered. Her brief cites an account summary for
the period of October 1, 2008, through December 31, 2008, that
lists a “total value” of $37,612.62 on October 1, 2008, and a “total
value” of $28,904.27 on December 31, 2008. But because the
6. “A qualified domestic relations order [(QDRO)] instructs the
trustee of a retirement plan and specifies how distributions
should be made, to whom, and when.” Potts v. Potts, 2018 UT
App 169, ¶ 1 n.2, 436 P.3d 263 (quotation simplified).

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20170956-CA 	26 	2019 UT App 147
Decree was not entered until November 28, 2008, the account
summary does not reveal the account’s balance at the time the
Decree was entered. The account summary supports the district
court’s finding that the balance was declining because “the
market had tanked,” and it shows that the “total value” of the
401(k) 	when 	the 	Decree 	was 	entered 	was 	likely 	between
$37,612.62 (value as of October 1) and $28,904.27 (value as of
December 31). Further, the account summary divides the “total
value” into two categories: “employee money” and “employer
money.” It states that the “employer account balance may not
[have 	been] 	100% 	vested” 	and 	“if 	[Melvin] 	terminate[d]
employment, [he] might not [have] receive[d] all of the money
[his] employer [had] contributed to the plan.” The “employee
money” was $28,173 on October 1, 2008, and $21,650.32 on
December 31, 2008. Accordingly, the record shows that the
amount of “employee money” in Melvin’s 401(k) when the
Decree was entered was between $21,650.32 and $28,173; not, as
Janette claims, $37,612.62.
¶58 	Second, 	Janette 	has 	not 	convinced 	us 	that 	the 	court
abused its discretion in concluding that Melvin satisfied his
obligation to pay her half of the 401(k) with the $8,885.52
payment. 	Below, 	Melvin 	argued 	that 	“due 	to 	the 	rapidly
declining value of the mutual funds in which the 401(k) was
invested, the parties agreed to try and divide the account equally
without the necessity of a QDRO by liquidating the account.”
And he asserted that when the 401(k) was liquidated, “a direct
deposit 	was 	made 	into 	[his] 	account 	in 	the 	amount 	of
$18,421.13.” He “paid the mandatory 10% penalty of $1,842
which 	yielded 	a 	balance 	of 	$8,289.52 	each.” 	Thus, 	Melvin
claimed that he actually “over-paid Janette by $595.95” because
she received $8,885.52 when “[her] one-half of the 401(k) was
only $8,289.57.”
¶59 	The 	court 	commissioner 	accepted 	Melvin’s 	argument,
finding that Melvin “took the check that he got” for “the reduced
value of the 401(k) after the market had tanked, divided that in

McQuarrie v. McQuarrie
20170956-CA 	27 	2019 UT App 147
half, and gave half of the remaining value to [Janette].” The
commissioner even found that Melvin paid “some taxes on—on
the withdrawal, but those were not taken out of [Janette’s]
share.” Based on those findings, the commissioner concluded
that Janette had “been made whole by [Melvin] paying her
[$8,885.52].” Janette has not shown that this conclusion was in
error. As far as we can tell, Melvin complied with the Decree’s
order 	to 	divide 	the 	401(k) 	equally 	between 	the 	parties 	by
liquidating the account and paying Janette half of what he
received.
¶60 	We 	conclude 	that 	the 	court’s 	order 	was 	not 	“so
unreasonable as to be classified as capricious and arbitrary, or a
clear abuse of discretion,” Dansie v. Dansie, 1999 UT App 92, ¶ 6,
977 P.2d 539 (quotation simplified), and we affirm the court’s
determination that Melvin satisfied his obligation to pay Janette
one-half 	of 	his 	401(k) 	benefits 	accrued 	during 	the 	parties’
marriage.
III. Attorney Fees
¶61 	Janette 	argues 	“the 	district 	court 	erred 	by 	arbitrarily
reducing [her] attorney fee award.” We disagree.
¶62 	“Utah Code section 30-3-3(2) authorizes an award of costs
and attorney fees ‘in any action to enforce an order of custody,
parent-time, child support, alimony, or division of property in a
domestic case’ upon the court’s determination ‘that the party
substantially prevailed upon the claim or defense.’” Wollsieffer v.
Wollsieffer, 2019 UT App 99, ¶ 13 (quoting Utah Code Ann.
§ 30-3-3(2) (LexisNexis Supp. 2018)). Fees awarded under section
30-3-3(2) “serve no equalizing function but allow the moving
party to collect fees unnecessarily incurred due to the other
party’s recalcitrance.” Connell v. Connell, 2010 UT App 139, ¶ 30,
233 P.3d 836. “In other words, when one party refuses to comply
with a court order, thereby compelling another party to seek its
enforcement, that party risks liability for the fees and costs

McQuarrie v. McQuarrie
20170956-CA 	28 	2019 UT App 147
accrued in the enforcement proceeding.” Wollsieffer, 2019 UT
App 99, ¶ 13.
¶63 	“Both the decision to award attorney fees and the amount
of such fees are within the [district] court’s sound discretion.”
Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 10, 176 P.3d 476
(quotation simplified). But in fixing the amount of reasonable
fees, the court should consider (1) the legal work “actually
performed,” 	(2) 	the 	amount 	of 	work 	that 	was 	“reasonably
necessary to adequately prosecute the matter,” (3) whether the
attorney’s billing rate is “consistent with the rates customarily
charged 	in 	the 	locality 	for 	similar 	services,” 	and 	(4) 	any
“circumstances 	which 	require 	consideration 	of 	additional
factors.” Dixie State Bank v. Bracken, 764 P.2d 985, 990 (Utah
1988).
¶64 	Here, the district court awarded Janette attorney fees
“regarding her attempts to enforce the Decree’s terms” and said,
“While both parties prevailed on some issues and were less
successful 	on 	others, 	[Janette] 	was 	the 	prevailing 	party 	in
relation to the prosecution of [the Show Cause Motion].” The
court explained further that the Show Cause Motion “brought
up such quick decisions . . . [b]ecause [Melvin] was not in
compliance with the [D]ecree.” We see no abuse of discretion in
the district court’s decision to award attorney fees to Janette only
for her efforts to prosecute the Show Cause Motion. See Neff v.
Neff, 2011 UT 6, ¶¶ 70–71, 247 P.3d 380 (explaining that a court’s
“decision 	about 	who 	prevailed” 	should 	be 	“based 	on 	an
approach that [is] flexible and reasoned” and highlighting “the
importance of . . . common sense”). In prosecuting that motion,
Janette successfully enforced the Decree by showing that Melvin
failed to timely purchase the annuity. Thus, it was reasonable for
the 	court 	to 	award 	her 	attorney 	fees 	“accrued 	in 	[that]
enforcement proceeding.” See Wollsieffer, 2019 UT App 99, ¶ 13.
¶65 	Janette submitted an attorney fees affidavit detailing the
fees she incurred in the case. The affidavit claimed “$275,659.00

McQuarrie v. McQuarrie
20170956-CA 	29 	2019 UT App 147
was incurred in [her] efforts to enforce the terms of the [Decree]”
and, of that amount, $61,448 was incurred in “the prosecution of
[the Show Cause Motion].” Based on that affidavit, Janette filed a
proposed order with an award of $275,659 in attorney fees. After
the court rejected this amount, Janette requested an award of
$61,448. But the court determined that those “fees [were] not
reasonable for an [order to show cause] hearing before the
commissioner and then the court.” After reviewing Janette’s
attorney fees affidavit, the court determined $9,480 “incurred in
fees was reasonable and necessary in relation to the prosecution
of [the Show Cause Motion]” and entered an order reflecting
that amount.
¶66 	The district court’s fees award does not constitute an
abuse of discretion. Janette requested $61,448 in fees, but the
record reveals that the court concluded such an amount was not
“reasonably necessary to adequately prosecute” the Show Cause
Motion. See Dixie State Bank, 764 P.2d at 990. We cannot say such
a conclusion was “beyond the limits of reasonability.” See Strohm
v. ClearOne Commc’ns, Inc., 2013 UT 21, ¶ 52, 308 P.3d 424
(quotation simplified). As the court explained, Janette prevailed
on the Show Cause Motion because Melvin simply “was not in
compliance with the Decree.” Janette may believe that $9,480 is
insufficient for her enforcement efforts, but “the amount itself
does not prove that the trial court abused its discretion.” Prince
v. Bear River Mutual Ins. Co., 2002 UT 68, ¶ 55, 56 P.3d 524. And
although 	Janette 	argues 	that 	“this 	matter 	has 	been 	heavily
contested and aggressively litigated by both parties,” a district
court “is in a better position than an appellate court to gauge the
quality and efficiency of the representation and the complexity
of the litigation.” Strohm, 2013 UT 21, ¶ 52 (quotation simplified).
Accordingly, we affirm the district court’s award of attorney fees
to 	Janette 	because 	we 	are 	not 	convinced 	that 	the 	award
amounted to “patent error or clear abuse of discretion.” See Dixie
State Bank, 764 P.2d at 989 (quotation simplified).

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20170956-CA 	30 	2019 UT App 147
¶67 	We note, however, that our remand of the annuity issue
may affect Janette’s attorney fees award. As the prevailing party
on the Show Cause Motion, Janette is entitled to fees on remand
reasonably 	incurred 	enforcing 	the 	Decree’s 	terms. 	Further,
because Janette received attorney fees for enforcing the Decree
below and she has substantially “prevailed on the main issues
on appeal,” she is entitled to attorney fees incurred for enforcing
the Decree on appeal. See Oliekan v. Oliekan, 2006 UT App 405,
¶ 32, 147 P.3d 464 (quotation simplified). Accordingly, we direct
the court to award Janette her fees incurred for that purpose on
appeal and the fees she incurs for that purpose on remand.
CONCLUSION
¶68 	We affirm the district court’s determination that Melvin’s
alimony obligation continued after Janette’s remarriage. But we
conclude the court abused its discretion by entering a judgment
against Melvin that failed to compensate Janette for the actual
loss caused by his failure to timely purchase the annuity. And
we affirm the court’s award of attorney fees to Janette as the
prevailing party on the Show Cause Motion. Accordingly, we
affirm 	in 	part, 	reverse 	in 	part, 	and 	remand 	for 	further
proceedings consistent with this opinion. On remand, the district
court should enter a judgment against Melvin that adequately
compensates Janette for Melvin’s failure to timely purchase the
annuity. It should also award Janette her attorney fees incurred
for enforcing the Decree on appeal and the fees she incurs for
that purpose on remand.