McPherson v. McPherson

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2013 UT App 302
_________________________________________________________
THE UTAH COURT OF APPEALS
CINDI R. MCPHERSON,
Petitioner and Appellant,
v.
GORDON W. MCPHERSON,
Respondent and Appellee.
Memorandum Decision
No. 20130007-CA
Filed December 27, 2013
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 094401941
James H. Woodall, Attorney for Appellant
Joshua K. Peterman, Attorney for Appellee
JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGE STEPHEN L. ROTH and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
ORME, Judge:
¶1 Cindi R. McPherson (Wife) appeals the trial court’s ruling
reducing her alimony by $500 per month, entering a judgment
against her for alimony overpayment, and permitting the
overpayment to be offset against the reduced alimony otherwise
payable. We reverse and remand.

McPherson v. McPherson
20130007-CA 2 2013 UT App 302
¶2 In August 2010, the trial court ordered Gordon W.
McPherson (Husband) to pay Wife $800 per month in alimony.
Husband appealed. We determined in McPherson v. McPherson,
2011 UT App 382, 265 P.3d 839, that the trial court erred when it
failed to take into account Husband’s tax liability and based the
alimony award on his gross, rather than net, income. Id. ¶ 14. We
also concluded that the trial court failed to address whether
Husband’s income was sufficient to make the required payments.
Id. ¶ 15.
¶3 We remanded the case to the trial court “for recalculation of
Husband’s alimony obligation, taking into consideration his tax
obligations and actual ability to pay.” Id. ¶ 16. We noted that
[i]n doing so, we acknowledge the trial court’s
discretion to make whatever other adjustments it
deems necessary to achieve an equalization of the
parties’ standards of living or to explain its rationale
for assigning a disproportionate percentage of the
shortfall to one party.
Id. We also observed that the evidence in the record tended to
demonstrate that Husband’s reasonable monthly expenses plus the
child support and alimony obligations imposed by the court
exceeded his net monthly income by over $1500. Id. ¶ 15. We noted,
however, that while this court must rely upon the record evidence,
“we do not intend to preclude the trial court from considering
whatever evidence it deems appropriate on remand.” Id. ¶ 14 n.4.
¶4 On remand, the parties argued that there was no need for
new evidence in order for the trial court to recalculate alimony. The
trial court found that “the appellate opinion has caused the parties
to differ greatly” as to the meaning of the opinion and “has caused
[the trial] court to struggle as well. For example, one of the reasons
the court in the original trial did not find net income was because
of what [the trial] court perceived as the paucity of evidence in that
regard.” The trial court asserted that “[o]n appeal, the appellate
court seemingly found within the record sufficient evidence to find
husband’s net income was $3270 per month, relying upon a revised

McPherson v. McPherson
2. In general, trial courts dealing with cases on remand “are in a
much better position to evaluate an entire case, including its
nuances and undisclosed pitfalls, than an appellate court.” See
Halladay v. Cluff, 739 P.2d 643, 645 n.5 (Utah Ct. App. 1987).
20130007-CA 3 2013 UT App 302
financial declaration which was part of the record.” The trial court
expressed that it “felt then, and now” that the financial declaration
did not accurately represent Husband’s tax liability. However,
deeming itself constrained by the directions governing remand, the
trial court determined that “it must now accept that figure as
determined on appeal by the court of appeals.”
¶5 The trial court acknowledged the footnote in our opinion
stating that the trial court was not precluded from making
appropriate findings, but observed that “no evidence was
presented on remand as to a true tax liability.” “Thus,” the trial
court continued, “if this court found as in essence it did at trial that
it could not and did not determine net income, seemingly that runs
afoul of what the court of appeals has required.” The trial court
concluded that if the court of appeals found $3270 to be Husband’s
net income, then the trial court did “not believe it can find
otherwise.”
¶6 The trial court then recalculated alimony based on the $3270
figure, resulting in the substantial reduction of Wife’s alimony and
a judgment against her of nearly $27,000 in alimony
overpayment—despite the fact that Wife is of very limited means
and Husband is facing, in the trial court’s words, reduced income
due only to his own “irresponsible behavior.” The trial court
intimated more than once in its order that it was unhappy with the
result but that it felt compelled to reach the result based on its
reading of our previous opinion.
¶7 In registering our concerns in our prior opinion about the
trial court’s reliance on gross instead of net income, we were not
aware of the problems that the trial court disclosed only on remand
concerning the apparent “paucity” of evidence as to net income.2
See id. ¶ 14 (“[W]e can find nowhere in the record where the trial

McPherson v. McPherson
3. “Trial courts are given primary responsibility for making
determinations of fact.” American Fork City v. Singleton, 2002 UT
App 331, ¶ 5, 57 P.3d 1124 (citation and internal quotation marks
omitted). “It is inappropriate for an appellate court . . . to assume
the role of weighing evidence and mak[e] its own findings of fact.”
Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158. In basing our
analysis on the evidence of income that appeared in the record
before us, we in no way meant to suggest that we were making a
finding of fact as to its validity. That duty is for the trial court
alone.
20130007-CA 4 2013 UT App 302
court explains its failure to consider Husband’s tax obligations
when making its alimony determination.”). Suffice it to say, insofar
as the trial court was not convinced that there was reliable evidence
to permit it to take into account Husband’s net income, which is
always preferred in calculating alimony, we in no way meant to tie
the trial court’s hands in considering the best evidence available to
it (or the effect of a lack of evidence, for that matter) in calculating
an appropriate alimony award.
¶8 We reverse the amended decree and again remand for the
trial court to reconsider the alimony award as called for in our
prior opinion, without any undue concern over the
pronouncements we previously made as to Husband’s net income.
Those statements were intended to guide and focus the trial court’s
consideration on remand on an issue we concluded had not been
adequately addressed; they were not intended to superimpose any
particular findings of fact, limit the sound exercise of the trial
court’s discretion, or dictate any particular result.3