Bergmann v. Bergmann

2018 UT App 130

THE UTAH COURT OF APPEALS

KAREN BERGMANN,
Appellee,
v.
EUGENE D. BERGMANN,
Appellant.

Opinion
No. 20160217-CA
Filed June 28, 2018

Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 144400815

Emily Adams, Attorney for Appellant
Thomas J. Burns and Philip M. Ballif, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS
concurred.

CHRISTIANSEN, Judge:

¶1 Eugene D. Bergmann and Karen Bergmann, now known
as Karen Christensen, divorced by bifurcated decree in May
2015. The trial court reserved several issues for trial, including
the legal effect of a premarital agreement (the Premarital
Agreement) the parties entered into in 2001 and a subsequent
agreement they executed in 2011 (the 2011 Agreement). In
January 2016, the trial court issued its amended findings of fact
and conclusions of law, which addressed all of the remaining
issues. Bergmann moved to alter or amend judgment, which the
court denied. Bergmann now appeals from the denial of that
motion. We affirm and remand for the limited purpose of
Bergmann v. Bergmann

calculating Christensen’s reasonable attorney fees incurred on
appeal.

BACKGROUND

¶2 Bergmann and Christensen married in 2001. Before they
married, the parties executed the Premarital Agreement, which
provides, in relevant part:

4.02 Living Expenses. During their marriage, the
parties shall establish a joint checking account
which will be the fund used for basic family living
expenses, such as home mortgage payments,
public liability and content insurance, utilities,
property taxes, property maintenance as to the
primary residence . . . , together with food and
similar basic living expenses. Each party shall
make deposits to such joint checking account in
such portions and such amounts as from time to
time may be determined necessary by them for
such purposes. Initially, the parties have
determined that Eugene will contribute $4,000 per
month and Karen will contribute $2,000 per month,
plus Social Security payments received by her.[1]
The parties recognize that each is able to make
such contributions. . . . If the parties cannot agree
as to the contribution to be made hereunder, each
party shall bear the costs of his or her respective
living expenses, unless one of the parties
determines to pay more than his or her share
which he or she shall be entitled to do.

1. Christensen’s social security benefits averaged $2,000 per
month.

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Bergmann v. Bergmann

¶3 After they married, the parties operated for years without
referring to the Premarital Agreement. During the marriage, the
parties agreed that they would contribute equally to the family
budget, and they both contributed to the joint checking account
for basic family living expenses. Consistent with that
understanding, the parties tracked their contributions and
withdrawals in a spreadsheet available to both of them. Over
time, Christensen’s contributions were significantly larger than
Bergmann’s. Bergmann acknowledged this fact in a November
2010 email to Christensen, in which he stated that he was
approximately $159,000 “in debt” to her.

¶4 Shortly after the 2010 email, Bergmann indicated to
Christensen that he needed money to help pay the basic family
living expenses. Because Christensen had paid more of the basic
family living expenses over the years than Bergmann, she agreed
to give Bergmann $20,000 only if Bergmann agreed to provide
“some assurance that [she] would get paid back.” Bergmann
suggested “that he would transfer [his] equity [in the parties’
marital home] to [Christensen] upon the sale of the home.” On
January 7, 2011, the parties entered into the 2011 Agreement,
which provides,

AGREEMENT
January 7, 2011: It is agreed that Eugene Bergmann
and Karen Bergmann share equal ownership in
their home . . . . It is also agreed to that Eugene will
assign an amount of his equity to Karen in the
amount of 170,000 dollars. This . . . amount
constitutes an[] approximate amount of additional
joint expenditures that Eugene has agreed to and is
owing to Karen. This exact amount will be verified
at some time in the future in a spreadsheet which
they will both come to a further mutual agreement
on. This spreadsheet will then be memorialized
into a more formal agreement to [supersede] this
one.

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Bergmann v. Bergmann

Two days later, Christensen deposited $20,000 into the parties’
joint checking account, and Bergmann used the money to pay
the basic family living expenses.

¶5 Christensen filed for divorce in 2014. The trial court
entered a bifurcated decree of divorce, dissolving the marriage
and reserving several issues for trial. The two primary issues at
trial were (1) whether the Premarital Agreement required the
parties to make equal contributions to the basic family living
expenses, and (2) whether, under the terms of the 2011
Agreement, Bergmann was required to assign to Christensen
$170,000 of his initial one-half share of the proceeds from the sale
of the parties’ marital home.

¶6 The trial court held a one-day bench trial, at which both
parties testified. The court determined that the Premarital
Agreement was an enforceable agreement but that Section 4.02
of the Premarital Agreement “does not say that [Bergmann and
Christensen] are each going to be exactly responsible for fifty
percent of the basic family living expenses forever and through
the life of the Premarital Agreement.” The court noted that
throughout the marriage, the parties had “not worr[ied] about
the technicalities of the Premarital Agreement. In fact, they
operated for years without referring to a copy of it.” Although
the parties had maintained a spreadsheet tracking their
individual contributions to the joint checking account, the court
found that “this practice of handling basic family living expenses
did not create a substitute contract that obligated them to divide
and pay basic family living expenses on a fifty-fifty basis
forever.” The court found that during the course of the marriage,
the parties had some disputes about who would pay for what,
but the parties “work[ed] this out when they entered into the
[the 2011 Agreement].”

¶7 The court observed that, in the 2011 Agreement, the
parties acknowledged that Christensen had paid more of the
basic family living expenses than Bergmann, that Bergmann
owed Christensen “an unspecified amount” of money, and that

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Bergmann v. Bergmann

Bergmann agreed to assign to Christensen $170,000 of his equity
share in the parties’ marital home on this basis. The court then
determined that the 2011 Agreement was an enforceable
agreement, supported by consideration. Specifically, at
Bergmann’s request, Christensen transferred $20,000 into the
parties’ joint checking account to help pay past due and
upcoming basic family living expenses, and, in return,
Bergmann assigned to Christensen $170,000 of his share of
equity in the marital home. The court ultimately concluded that
the 2011 Agreement was not a modification to the Premarital
Agreement but that it was “an additional, enforceable agreement
anticipated by the Premarital Agreement.”

¶8 Accordingly, the court awarded Christensen $170,000
from Bergmann’s initial one-half share of the proceeds from the
sale of the marital home. The court also awarded Christensen her
attorney fees incurred in connection with responding to a
pretrial motion in limine Bergmann had filed, concluding that
the motion was “frivolous and patently inappropriate.” The
court determined that the parties were otherwise responsible for
their own attorney fees and costs.

¶9 After trial, Bergmann moved to alter or amend the
judgment pursuant to rule 59(a)(7) of the Utah Rules of Civil
Procedure. See Utah R. Civ. P. 59(a)(7) (“[A] new trial may be
granted to any party on any issue for any of the following
reasons: . . . that the verdict or decision is contrary to law or
based on an error in law.”). In his motion, Bergmann asserted
that when the parties entered into the 2011 Agreement, “both
parties believed that there was a contractual duty under [the
Premarital Agreement] that they each pay 50/50 for all joint
living expenses.” According to Bergmann,

[i]nasmuch as the Court ruled that in fact there was
no legal obligation for [Bergmann] to reimburse
[Christensen] for 50% of all marital expenditures,
where [the 2011 Agreement] was fundamentally
based on the mutual mistake that there was a

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Bergmann v. Bergmann

contractual obligation under [the Premarital
Agreement] for a 50/50 responsibility of family
living expenses, this contract should not be
enforced by the Court.

Bergmann also asserted that the 2011 Agreement was based on
the parties’ mutual mistake regarding the amount Bergmann
owed Christensen. Bergmann requested that the court “reverse
its finding that [Christensen] receive[] $170,000 from [Bergmann]
and order that [Christensen] return those funds to him.”
Christensen filed a response to the motion to amend, asserting
that Bergmann’s motion was “merely a rehash of closing
argument.” She also requested her attorney fees incurred in
“having to oppose [Bergmann’s] motion.”

¶10 The trial court denied Bergmann’s motion, stating:

The arguments [Bergmann] has advanced are not
new to the case. He does not seek to present new
evidence. There was no[] surprise in the sense that
evidence or theories were allowed to be presented
at trial that could not have been anticipated by the
parties in preparation for the trial. The Court
disagrees with [Bergmann’s] characterization about
the intent and understanding of the parties as they
attempted to define their marital relationship
through agreement and practice. The Court is
satisfied that the ruling announced from the bench
and memorialized in the subsequently prepared
findings and decree are legally and factually
correct.

The court awarded attorney fees to Christensen related to the
post-trial motion, concluding that Bergmann’s motion to amend
“did not materially advance the matter and required a careful
response from [Christensen’s] counsel.” Bergmann appeals.

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Bergmann v. Bergmann

ISSUES AND STANDARDS OF REVIEW

¶11 Bergmann contends that the trial court abused its
discretion when it denied his rule 59 motion to alter or amend.
Within this argument, Bergmann asserts that the trial court erred
when it ruled that the 2011 Agreement was enforceable, because
the parties were operating under a mutual mistake of fact
(1) that the Premarital Agreement required equal contributions
and (2) regarding the amount Bergmann owed Christensen.

¶12 “Generally, we afford trial judges wide latitude in
granting or denying rule 59 motions.” Sanpete Am., LLC v.
Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. “We grant this
discretion because the trial court, having heard the evidence,
typically is in a better position to determine whether the grant or
denial of a rule 59 motion is warranted.” Id. “Consequently, we
generally disturb a trial court’s grant or denial of a rule 59
motion only if it constitutes an abuse of discretion.” Id. To the
extent that our review turns on facts presented at trial, we defer
to the trial court’s underlying findings of fact, “which shall not
be set aside unless clearly erroneous.” Id. ¶ 29 (citation and
internal quotation marks omitted). “Findings are clearly
erroneous if they are against the clear weight of the evidence or
if the appellate court reaches a definite and firm conviction that a
mistake has been made.” Sorenson v. Kennecott-Utah Copper Corp.,
873 P.2d 1141, 1147 (Utah Ct. App. 1994). “The issue of mistake
of fact involves factual determinations and conclusions of law.
We review factual determinations for clear error and conclusions
of law for correctness.” Deep Creek Ranch, LLC v. Utah State
Armory Board, 2008 UT 3, ¶ 10, 178 P.3d 886.

ANALYSIS

I. Mutual Mistake

¶13 Bergmann contends that the parties “entered into the 2011
Agreement operating under a mutual mistake of fact” and that

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Bergmann v. Bergmann

the trial court “erred when it did not rescind the 2011
Agreement.”2 He first asserts that “the parties executed the 2011
Agreement erroneously believing that the Premarital Agreement
required them to equally contribute to basic living expenses.”
Alternatively, he asserts that the parties entered into the 2011
Agreement operating under a mutual mistake about the amount
Bergmann owed Christensen.

¶14 “A mutual mistake occurs when both parties, at the time
of contracting, share a misconception about a basic assumption
or vital fact upon which they based their bargain.” Cantamar,
LLC v. Champagne, 2006 UT App 321, ¶ 38, 142 P.3d 140 (citation
and internal quotation marks omitted). “Mutual mistake of fact

2. Christensen contends that Bergmann “waived any possible
mutual mistake argument” by failing to plead the defense with
particularity in his response to Christensen’s petition for divorce.
The record indicates that Bergmann raised the issue of mutual
mistake at trial and that Christensen objected on the same basis
she asserts now. The trial court stated:
Well, I don’t want to say that [Bergmann is]
necessarily going to prevail on those defenses, but
the fact of the matter is [that] this is equity, and
those defenses are largely equitable arguments. It
comes down to what . . . can be argued as fair
under the circumstances. So I’m not too exercised
that they weren’t pled in advance. I’m not sure
they apply in this case.
In its amended findings of fact and conclusions of law, the court
did not expressly rule on Bergmann’s mutual-mistake argument.
But in denying Bergmann’s motion to alter or amend, which was
based on the theory of mutual mistake, the court stated that
Bergmann’s arguments “are not new to the case” and that his
“evidence or theories were allowed to be presented at trial.”
Because the trial court apparently considered Bergmann’s
mutual-mistake defense, we are not persuaded by Christensen’s
contention that Bergmann waived the defense.

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Bergmann v. Bergmann

makes a contract voidable and is a basis for equitable rescission.”
Robert Langston, Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct.
App. 1987) (citation omitted). “The proponent of a mutual-
mistake claim must prove the elements by clear and convincing
evidence.” High Desert Estates LLC v. Arnett, 2015 UT App 196,
¶ 11, 357 P.3d 7. The trial court did not explicitly address
Bergmann’s mutual-mistake arguments in its amended findings
of fact and conclusions of law, but in its denial of Bergmann’s
motion to alter or amend judgment, the court “disagree[d] with
[Bergmann’s] characterization about the intent and
understanding of the parties as they attempted to define their
marital relationship through agreement and practice.”

A. Equal Contributions

¶15 Bergmann asserts that the parties entered into the 2011
Agreement “because they believed the Premarital Agreement
required equal contributions.” The trial court determined that
section 4.02 of the Premarital Agreement “does not say that
[Bergmann and Christensen] are each going to be exactly
responsible for fifty percent of the basic family living expenses
forever and through the life of the Premarital Agreement.”
Bergmann does not challenge this finding on appeal; indeed, he
“embraces that finding on appeal.” Instead, Bergmann
challenges the court’s “next step,” i.e., the court’s determination
that the 2011 Agreement was enforceable and its “implied[]”
rejection of his mutual-mistake argument.

¶16 According to Bergmann, “[e]verything in this case is
underpinned by the parties’ belief that the Premarital Agreement
required equal contributions.” Bergmann asserts that he “clearly
testified that he signed the 2011 Agreement because he believed
the Premarital Agreement required him to contribute equally to
basic family living expenses.” He further asserts that
Christensen’s testimony demonstrated that she expected
Bergmann to contribute equally to the basic family living
expenses and that the only reason Christensen gave for that

20160217-CA 9 2018 UT App 130
Bergmann v. Bergmann

expectation “was the terms of the Premarital Agreement.” We
are not persuaded.

¶17 To begin with, the evidence is, at best, conflicting as to
whether the parties entered into the 2011 Agreement based on
the mistaken belief that the Premarital Agreement required them
to contribute equally to the family’s basic living expenses. See
generally High Desert Estates LLC v. Arnett, 2015 UT App 196,
¶ 14, 357 P.3d 7 (“[W]e will not reweigh . . . conflicting evidence
so long as there is evidence to support the trial court’s
findings.”). Bergmann testified that at the time he entered into
the 2011 Agreement, he believed he was “required to pay 50/50
of all living expenses” and that the 2011 Agreement was a result
of that mistaken belief. He further testified that he believed he
was indebted to Christensen based upon the terms of the
Premarital Agreement.

¶18 However, as Christensen correctly observes, Bergmann
also testified that he entered into the 2011 Agreement as a form
of estate planning:

I signed [the 2011 Agreement] to essentially—in
the event of my death, you know, that there would
be no problem with [Christensen] to have the
whole house. We had a $170,000 mortgage on the
house still, and it, you know, seemed reasonable.
Then we also, you know, didn’t have all our real
numbers.

So we just had an approximate . . . debt that
was 159 or something like that, and we just
assigned that number to it, so—in the event of
something happening. Then at some future date
we would do the hard work and sort of figure out
what the real numbers were, the real contributions
and that sort of thing; but it was based on a 50/50
understanding.

20160217-CA 10 2018 UT App 130
Bergmann v. Bergmann

Additionally, Bergmann acknowledged at trial that shortly
before the parties signed the 2011 Agreement, he had asked
Christensen to put an additional $20,000 into the parties’ joint
checking account and that, in the 2011 Agreement, he had agreed
to assign to Christensen $170,000 of his equity share in the
parties’ marital home.

¶19 Christensen’s testimony on the matter also does not
unequivocally establish that she entered into the 2011
Agreement based on an assumption that the Premarital
Agreement required the parties to contribute equally to basic
family living expenses. Indeed, although Christensen’s
testimony demonstrates that she expected the parties to
contribute equally to basic living expenses, Christensen never
explicitly stated that this expectation was based on the
Premarital Agreement. Rather, Christensen stated (1) she
expected Bergmann to contribute equally from the start of their
marriage; (2) Bergmann failed to meet that expectation, forcing
her to contribute more to basic family living expenses; (3) she
expected him to make her whole, and Bergmann had “sent [her]
many messages that he would make [her] whole”; and (4) when
Bergmann needed $20,000 and had not followed through on his
promises to make her whole thus far, she required more
assurance that she would get paid back.

¶20 In any event, regardless of the source of the parties’ belief
that they were required to make equal contributions, the record
demonstrates that the parties conducted their marriage with the
understanding that they would contribute equally to basic
family living expenses. The trial court found, and Bergmann
agrees, that the parties operated for years without referring to
the Premarital Agreement and that they did not worry about the
technicalities of the Premarital Agreement. The trial court also
found that the parties worked together to pay basic living
expenses. The record bears this out—when Bergmann either
could not or would not contribute to the basic family living
expenses, Christensen rose to the occasion and paid those
expenses so that the parties would not overdraw on their joint

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Bergmann v. Bergmann

account. Additionally, throughout their marriage, the parties
maintained a detailed spreadsheet related to the basic family
living expenses, tracking transactions for the expenses from the
joint checking account as well as from credit cards tied to their
personal, separate funds. This practice of working together to
pay basic living expenses and of keeping detailed records of
their contributions demonstrates the parties’ understanding and
expectation that they would contribute equally to basic living
expenses.

¶21 Moreover, and perhaps most importantly, the fact that the
parties understood that they would contribute equally (whether
based on the Premarital Agreement or from their course of
conduct throughout the marriage) does not undermine the
legitimacy of the 2011 Agreement or the fact that, at the time the
parties entered into the 2011 Agreement, they shared an
understanding that Bergmann owed Christensen money and
that Christensen needed to be made whole. The trial court found
that in the 2011 Agreement the parties acknowledged that
Christensen had paid more of the basic family living expenses
than Bergmann and that there was an “unspecified amount” that
Bergmann owed Christensen. The trial court determined that it
was “because of this that [Bergmann] agreed in the [2011
Agreement] to assign to [Christensen] $170,000 of his equity
share in the marital home.” The court further determined that
Christensen had transferred $20,000 into the joint checking
account to help Bergmann pay past due and upcoming basic
living expenses and that, in exchange, Bergmann had assigned
$170,000 of his equity share of the parties’ home. The court
concluded that the 2011 Agreement was enforceable as a
separate agreement, that the agreement was supported by
separate consideration, and that both parties had changed their
position in reliance on the agreement. There is sufficient
evidence in the record to support the court’s findings.

¶22 Specifically, the record demonstrates that when
Bergmann needed the $20,000 and approached Christensen for
help, both parties understood that Christensen had contributed

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Bergmann v. Bergmann

more to the basic family living expenses than Bergmann.
Christensen testified that early on in the parties’ marriage, she
started contributing more when Bergmann “couldn’t or
wouldn’t” contribute. She stated that when they had bills to pay,
Bergmann “would have some reason why he couldn’t”
contribute, and the burden was on Christensen to keep the joint
account from being overdrawn. In his November 2010 email,
Bergmann acknowledged that he was approximately $159,000
“in debt” to Christensen, and he apologized for things “being
more of a mess” on his side financially.

¶23 In testifying about the events that “led up to the
execution” of the 2011 Agreement, Christensen testified that
when Bergmann approached her about the $20,000, she had not
been “seeing any results in [Bergmann] trying . . . to make [her]
whole.” Consequently, before she was willing to give Bergmann
the money, she sought “something more tangible than just a
promise that [she] would be made whole.” Accordingly, the
parties agreed that “if [Christensen] could have some assurance
that [she] would get paid back,” she would make the $20,000
deposit into the joint checking account. Christensen testified that
Bergmann suggested that he transfer $170,000 of his equity share
in the parties’ marital home in exchange for the $20,000. On
January 7, 2011, the parties entered into the 2011 Agreement, in
which Bergmann assigned his $170,000 equity share of the
parties’ home to Christensen. Two days later, on January 9, 2011,
Christensen deposited $20,000 into the parties’ joint checking
account, and Bergmann used the funds to pay his obligations.

¶24 Bergmann has not demonstrated that the trial court’s
findings regarding the 2011 Agreement lack evidentiary support
or that those findings are clearly erroneous. Consequently,
Bergmann has failed to demonstrate that the parties entered into
the 2011 Agreement based on a mutual mistake of fact. We
therefore conclude that the trial court did not err in enforcing the
2011 Agreement, and did not abuse its discretion in denying
Bergmann’s motion to alter or amend judgment on this basis.

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Bergmann v. Bergmann

B. The Amount Bergmann Owed

¶25 As an alternative to his first argument, Bergmann
contends that “the parties entered into the 2011 Agreement
operating under a mutual mistake about the amount Mr.
Bergmann owed Ms. Christensen.”

¶26 The 2011 Agreement stated, in relevant part, that the
$170,000 represented an

approximate amount of additional joint
expenditures that [Bergmann] has agreed to and is
owing to [Christensen]. This exact amount will be
verified at some time in the future in a spreadsheet
which they will both come to a further mutual
agreement on. This spreadsheet will then be
memorialized into a more formal agreement to
[supersede] this one.

According to Bergmann, the parties entered into the 2011
Agreement “believing that Mr. Bergmann’s debt to Ms.
Christensen totaled $170,000,” but “the evidence adduced at trial
shows that Mr. Bergmann . . . owed Ms. Christensen much less.”

¶27 In support of his claim that he owed Christensen less than
$170,000, Bergmann observes that Christensen hired an
accountant to help calculate the amount Bergmann owed and
that the accountant determined that Christensen had contributed
approximately $168,000 more than Bergmann to the parties’ joint
account. Bergmann asserts that it is undisputed that the
accountant’s figure “did not credit Mr. Bergmann for
approximately $22,000 in federal tax withholdings” or “include
approximately $41,000 of Mr. Bergmann’s contributions that
Ms. Christensen characterized as withdrawals,” thus
demonstrating that “Bergmann, did not, in fact, owe . . .
Christensen $170,000.” Bergmann further asserts, without
citation to the record, that he “presented undisputed evidence
that [he] owed tens of thousands of dollars less than $170,000.”

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¶28 The trial court found that, in the 2011 Agreement, the
parties had acknowledged that Christensen had contributed
more to the parties’ basic family living expenses than Bergmann
and had acknowledged that Bergmann owed Christensen an
“unspecified amount.” In its oral ruling, the court determined
that the parties had “settled for $170,000” and that Christensen
“took [$]170,000 to cancel what [Bergmann] owed at that point,
and that made it even from then on.” The court ultimately
concluded that Bergmann was required to pay Christensen the
$170,000 they had agreed to in the 2011 Agreement. In so ruling,
the court explicitly rejected both parties’ attempts to alter the
$170,000 amount stated in the 2011 Agreement.

¶29 Specifically, at trial, Christensen testified that she had
hired an accountant to help her determine the exact amount
Bergmann owed her. Christensen described the information she
had provided to her accountant and ultimately relied on the
figures prepared by her accountant (and received as evidence by
the trial court) to support her testimony regarding how much
Bergmann owed her. Christensen’s accountant testified that
Christensen had contributed approximately $336,000 more than
Bergmann to the parties’ joint checking account and that
Bergmann’s share of this difference was approximately $168,000.
However, the court rejected both Christensen’s and her
accountant’s testimony “about the family expenses,” stating that
it “did not find [that testimony] to be particularly credible.” See
generally Henshaw v. Henshaw, 2012 UT App 56, ¶ 11, 271 P.3d 837
(“It is within the province of the trial court, as the finder of fact,
to resolve issues of credibility.”). And with regard to the
accountant specifically, the court found that his “conclusions
and tables” were “tainted” by Christensen’s “assumptions and
directions about what was a family expense [and] what was
not.”

¶30 The court also rejected Bergmann’s testimony regarding
several out-of-pocket expenses he had allegedly incurred in
getting the marital home ready to sell and which he believed
should offset his debt to Christensen. Bergmann testified that he

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had spent “101.25 hours” working on the parties’ marital home,
totaling $4,716.85 in out-of-pocket expenses and “over $11,000”
in labor. He also submitted numerous receipts into evidence. 3
But the court found that Bergmann’s testimony was not
“complete or credible enough.” The court explained that
Bergmann was “vague and unspecific about [his] out-of-pocket
expenses” and that it was hard to distinguish between the work
that Bergmann did “that he normally would have contracted for
and work that a homeowner would normally do to protect their
own asset.” Concluding that Bergmann provided “[n]othing
reliable” regarding the value of that work, the court
“disregard[ed] that testimony.”

¶31 The resolution of this issue required the trial court to
determine the credibility of each witness’s testimony. On appeal,

we give great deference to a trial court’s
determinations of credibility based on the
presumption that the trial judge, having personally
observed the quality of the evidence, the tenor of
the proceedings, and the demeanor of the parties,
is in a better position to perceive the subtleties at
issue than we can looking only at the cold record.

Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204 (citation and
internal quotation marks omitted). “Consequently, in all actions
tried upon the facts without a jury, findings of fact shall not be
set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the
witnesses.” Id. (citation and internal quotation marks omitted).

¶32 Here, the record demonstrates that the trial court
considered testimony by Christensen, Christensen’s accountant,

3. The court received only twenty pages of Bergmann’s
documentation into evidence, concluding that the rest was
inadmissible.

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and Bergmann regarding the amount Bergmann owed
Christensen, and it elected to disregard that testimony as not
credible. Bergmann has failed to challenge the court’s credibility
determination, much less demonstrate that it was clearly
erroneous, and we will “defer to that credibility determination.”
See id. ¶ 7. Moreover, although Bergmann asserts that the parties
mistakenly believed that he owed Christensen $170,000, the trial
court determined that the parties had “settled for $170,000,” i.e.,
that the $170,000 amount represented a compromise between the
parties. (Emphasis added.) Bergmann has not challenged this
finding on appeal, and he has therefore failed to demonstrate
that it is clearly erroneous. See Utah R. Civ. P. 52(a)(4) (“Findings
of fact . . . must not be set aside unless clearly erroneous, and the
reviewing court must give due regard to the trial court’s
opportunity to judge the credibility of the witnesses.”). By
extension, he has failed to demonstrate that the 2011 Agreement
was the product of a mutual mistake.

¶33 In any event, the fact that the 2011 Agreement
contemplated that the parties could revisit the amount stated
indicates that the parties did not necessarily agree on the amount
Bergmann owed (as opposed to their definite agreement that
Bergmann did, in fact, owe Christensen something), but that
they settled on $170,000 for the time being, reserving the right to
revisit the issue in the future if they truly perceived that
Bergmann owed Christensen a different amount. Yet in the more
than three years between the execution of the 2011 Agreement
and Christensen’s filing for divorce, the parties never revisited
the issue, and both parties ultimately failed to present any
credible evidence in their respective efforts to alter the amount
Bergmann owed.

¶34 Bergmann has not demonstrated that the 2011 Agreement
was the product of a mutual mistake as to the amount he owed.
Consequently, the trial court did not err in enforcing the 2011
Agreement, nor did it abuse its discretion in denying
Bergmann’s motion to alter or amend judgment.

20160217-CA 17 2018 UT App 130
Bergmann v. Bergmann

II. Attorney Fees

¶35 Christensen contends that she “is entitled to the fees and
costs she has incurred in defending against [Bergmann’s]
appeal.” “Generally, when the trial court awards fees in a
domestic action to the party who then substantially prevails on
appeal, fees will also be awarded to that party on appeal.”
Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App.
1994) (citation and internal quotation marks omitted). The trial
court awarded Christensen her attorney fees incurred in
responding to Bergmann’s motion to alter or amend judgment,
concluding that Bergmann’s motion “did not materially advance
the matter and required a careful response from [Christensen’s]
counsel.” 4 Bergmann has not challenged the trial court’s
attorney-fee award, and Christensen correctly observes that
Bergmann’s arguments on appeal are “nearly identical” to those
he presented in his motion. Accordingly, because Christensen
has prevailed on appeal, we award Christensen her reasonable
attorney fees incurred in connection with this appeal in an
amount to be determined by the trial court on remand. 5

CONCLUSION

¶36 We affirm the trial court’s ruling that the 2011 Agreement
was enforceable and not the product of a mutual mistake. We

4. At trial, the court also awarded Christensen her attorney fees
incurred in responding to Bergmann’s motion in limine,
concluding that Bergmann’s motion in limine was “frivolous and
patently inappropriate.” The court determined that the parties
were otherwise responsible for their own attorney fees and costs.

5. Utah Rule of Appellate Procedure 34(a) provides that “if a
judgment or order is affirmed, costs shall be taxed against [the]
appellant unless otherwise ordered.” We therefore also award
Christensen her costs reasonably incurred on appeal.

20160217-CA 18 2018 UT App 130
Bergmann v. Bergmann

therefore conclude that the trial court did not abuse its discretion
in denying Bergmann’s motion to alter or amend judgment. We
remand this case to the trial court for the limited purpose of
calculating Christensen’s attorney fees reasonably incurred on
appeal.

20160217-CA 19 2018 UT App 130