Clarke v. Clarke

2023 UT App 160
THE UTAH C OURT OF APPEALS
EDWIN M. C LARKE,
Appellee,
v.
A NGOZI R.S. C LARKE,
Appellant.
Opinion
No. 20220067-CA
Filed December 29, 2023
Third District Court, Silver Summit Department
The Honorable Teresa Welch
No. 174500147
Cassie Medura and Jarrod H. Jennings,
Attorneys for Appellant
Julie J. Nelson and Rebecca Ross,
Attorneys for Appellee
JUDGE R YAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. O RME and JOHN D. LUTHY concurred.
HARRIS, Judge:
¶1 	After about twenty years of marriage, Edwin (Ed) and
Angozi (Anne) Clarke separated in 2016, and their divorce case
proceeded to a four-day bench trial in late 2020 and early 2021.
Anne 	appeals 	from 	some 	of 	the 	trial 	court’s 	findings 	and
conclusions regarding the financial aspects of the case, chiefly the
court’s determination as to how much alimony Ed was ordered to
pay. And she appeals the court’s denial of her motion for a new
trial. We reject Anne’s arguments and affirm the court’s rulings.

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BACKGROUND
¶2 	Ed and Anne0F
1 married in September 1996. Ed commenced
this divorce action in 2017. During their marriage, the parties had
three children together, none of whom are minors now and only
one of whom was a minor at the time of trial. The bulk of the
pretrial litigation in this case concerned the parties’ children, but
none of the trial court’s eventual rulings regarding custody are at
issue 	in 	this 	appeal; 	rather, 	the 	matters 	at 	issue 	here 	are
exclusively financial.
¶3 	Ed is an airline pilot by trade, and in the years leading up
to trial he worked for Delta Air Lines (Delta); in 2016, he was
promoted 	to 	captain. 	Anne 	was 	also 	employed 	during 	the
marriage; the trial court found that, since 2006, she had been “self-
employed as an Independent Clothing Salesperson” affiliated
with a clothing company. Prior to trial, the parties exchanged
several financial disclosures, including information about their
respective 	incomes and 	claimed 	monthly 	expenses. 	As trial
approached, the court entered a pretrial order commanding that
the parties exchange “[u]pdated [f]inancial [s]tatements . . . 21
days prior to the scheduled trial date.”
¶4 	Trial was eventually scheduled for a three-day setting in
November 2020. In keeping with the pretrial scheduling order, the
parties exchanged updated financial information in the weeks
prior to the scheduled trial date. Anne submitted an updated
financial declaration in September 2020, therein asserting that her
gross employment income was $1,674 per month (not including
alimony and child support payments Ed was making pursuant to
a temporary order), that her total net income (including alimony
1. Because the parties share the same last name, we follow our
usual practice of referring to them by first names, with no
disrespect intended by the apparent informality. In this case, we
also follow the parties’ lead, as demonstrated in briefing and at
oral argument, in referring to the parties by nicknames rather than
by full first names.

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20220067-CA 	3 	2023 UT App 160
and child support, but after taxes) was $3,894 per month, and that
her expenses were $8,093 per month. Regarding expenses, the
form she used contained two columns for each line item, one for
the “current amount” and one for “marital expenses.” Anne filled
out only the “current amount” column; she left the “marital
expenses” column blank.
¶5 	In 	his 	final 	pretrial 	disclosures, 	Ed 	submitted 	an
updated financial declaration indicating that his net income was
$14,849 per month. Regarding expenses, Ed filled out both
columns, indicating that his “current” expenses were $16,399 and
that his monthly “marital expenses” had been $17,007. Ed also
produced documentation supporting his assertions regarding
income and expenses, including his tax returns from 2015 through
2019, as well as a paystub dated September 30, 2020 that included
2020 year-to-date income information. While Anne raised one
pretrial concern with Ed’s financial disclosures, she did not
litigate that concern to completion,1F
2 and she lodged no other
objection prior to or during trial to the scope of Ed’s financial
disclosures.
¶6 	Trial began on November 10, 2020. The most prominent
issues at trial were financial ones, chiefly Anne’s request for
alimony, and much of the trial was devoted to evidence of the
2. Anne filed a Statement of Discovery Issues in September 2020,
asking that Ed be ordered to produce certain additional financial
information. The matter was scheduled for a hearing, to be held a
couple of weeks prior to trial, before the domestic relations
commissioner. But after submission of Ed’s response to the
Statement of Discovery Issues, as well as Ed’s final pretrial
disclosures and updated financial declaration, the commissioner
removed the hearing from the calendar at Ed’s request. There is
no indication, in the record, that Anne ever asked that the hearing
be rescheduled or that either the commissioner or the trial court
take up the matter again. There is no indication that any ruling
was ever made on Anne’s Statement of Discovery Issues. And
Anne does not press the matter here on appeal.

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parties’ respective incomes and expenses. The disputes were
especially pointed regarding Ed’s income and Anne’s expenses.
Neither side called any financial experts to the stand; the only
witnesses to offer evidence regarding the parties’ finances were
the parties themselves.
¶7 	Ed was on the witness stand for the better part of three
days, and he offered testimony about his income. He explained
that, in 2016, he was promoted to captain and thereby earned a
substantial raise, and that during the years 2016 through 2018 he
earned relatively consistent annual amounts, from approximately
$271,000 to $292,000. In 2019, however, he earned a significantly
higher salary, making approximately $349,000. He testified that,
given 	the 	COVID-19 	pandemic 	and 	the 	ensuing 	change 	in
worldwide travel conditions in 2020, this 2019 pay increase was
anomalous and not representative of his earning capacity at the
time of trial. He explained that his 2019 income was higher than
usual because, during that year, “Delta experienced a pilot
shortage” that enabled him “to work significant overtime” during
this “high demand time.” And he explained that the pandemic
had significantly impacted Delta’s business in several ways. In
2020, there were “far too many pilots for the flight schedules being
flown,” and therefore he was not able to work even pre-2019
hours, 	let 	alone 	the 	increased 	2019 	hours. 	In 	addition, 	he
explained that before the pandemic, he had, as a captain, received
a profit-sharing payment from Delta; that payment from 2019 had
been significant, totaling over $51,000. But he testified that, given
the state of Delta’s business in 2020, he was unlikely to receive any
profit-sharing payment for that year, or for the foreseeable short-
term future. He testified that, given these circumstances, the
income that he received during September 2020—as reflected on
his paystub from that month—was most indicative of his earning
capacity moving forward. In his proposed post-trial findings, Ed
indicated that his net monthly income was $13,358.32, based on
then-current tax codes. And he testified that his marital expenses
were consistent with what he had listed on his most recent
financial declaration.

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¶8 	Anne offered very little testimony regarding her income
and expenses. She did, however, testify briefly about certain
business expenses that she believed should be deducted from her
income for alimony purposes. She offered no testimony regarding
her total net income or how it should be computed, but she
indicated in written filings (including her post-trial proposed
findings) that her net income from employment (not including
alimony and child support) was $920 per month.
¶9 	Both parties also testified that they should receive credit,
or “offsets,” for previous expenditures made using their personal
funds for items or matters for which they believed both parties
should 	be 	equally 	responsible. 	For 	instance, 	Ed 	asked 	for
reimbursement of payments he made for maintenance of the
marital home and for certain child-related expenses. Anne asked
for repayment of other child-related expenses and for costs
incurred in moving out of the marital home around the time of
separation, and she sought some sort of credit for various other
instances where she alleged Ed had used her personal funds.
¶10 	As the three scheduled November 2020 trial days drew to
a close, it became apparent that the parties were going to need
additional time to present their evidence. After some discussion,
the court agreed to schedule a fourth trial day, but the parties and
the court did not have mutual availability until February 2021.
Thus, the court scheduled a fourth trial day for February 11, and
it scheduled closing arguments to take place on March 9.
¶11 	A few weeks after the closing arguments, the court issued
a lengthy ruling containing its findings of fact and conclusions of
law.2F
3 In that ruling, the court indicated that it found Ed’s
testimony about his income to be credible, and on that basis
determined that the years 2019 and 2020 were both anomalous
3. The court later made minor amendments to its findings and
conclusions in response to Ed’s motion for clarification. Our
quotations from the court’s findings and conclusions come from
the amended version.

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with regard to Ed’s income, and that neither year was “indicative
of 	his 	normal 	or 	foreseeable 	income.” 	Instead, 	the 	court
determined that the most accurate measure of Ed’s earning
capacity, as of the time of trial, was an average of his 2016, 2017,
and 2018 earnings. The court also believed that Ed was unlikely
to receive profit-sharing income from Delta “for the foreseeable
future.” Thus, the court did not include profit sharing as part of
Ed’s gross income calculation. Using Ed’s 2016, 2017, and 2018 tax
returns and averaging the income figures found there, the court
determined that Ed’s gross monthly earning capacity, for child
support and alimony purposes, was $20,452.25. And the court
calculated Ed’s net income “by applying current tax rates to” the
gross income figure it had come up with. Using this methodology,
the 	court 	calculated 	Ed’s 	net 	monthly 	earning 	capacity 	as
$13,358.32. And it calculated Ed’s reasonable monthly expenses,
in light of the marital standard of living, to be $10,249.46.
¶12 	The court calculated Anne’s gross earning capacity by
averaging 	her 	earnings 	from 	2015 	through 	2019 	and 	then
concluding, on that basis, that her earning capacity was $3,158.50
per month. The court declined Anne’s invitation to subtract
business expenses from that figure, noting that, under applicable
law, “[o]nly those expenses necessary to allow the business to
operate at a reasonable level may be deducted from gross
receipts,” and concluding that Anne had “failed to explain which,
if any, business expenses claimed on her tax returns are necessary
to allow [her clothing enterprise] to operate at a reasonable level.”
¶13 	The court then noted that “[n]o testimony was offered at
trial regarding” how to calculate Anne’s net income. The court
found it “difficult to ascertain the amount of tax [Anne] actually
[paid] based upon her income” given that Anne had “been
receiving alimony during the pendency of the case” and had been
“responsible for the tax consequences of her alimony income,” but
due to changes in the tax code subsequent alimony payments
would “be received tax-free.” Given these difficulties, the court
looked to Anne’s 2017 tax return for guidance, and it determined
that Anne had paid $390.35 in taxes on a monthly basis that year;

Clarke v. Clarke
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it then applied that same tax-paid figure to Anne’s future income.
Using this methodology, the court determined that Anne’s net
monthly earning capacity was $2,768.25.3F
4
¶14 	In determining Anne’s reasonable monthly expenses, the
court primarily relied on Anne’s most recent financial declaration.
The court found Anne’s latest declaration to be more credible than
earlier versions, explaining that Anne had testified that one of the
earlier declarations was “inaccurate,” and opining that another
one was “uncredible” because it claimed monthly expenses that
were “more than the gross earnings of both Parties combined for
the last full year of the marriage.” For the most part, the court
found the expenses claimed in Anne’s most recent declaration “to
be reasonable in light of the marital standard of living.” However,
the court found that a few of the listed expenses were “post-
separation debt for which [Anne was] solely responsible,” and it
therefore deducted those expenses from the calculation. But
without being asked to do so, the court added to Anne’s list a line
item for health care expenses. With these adjustments, and based
largely on Anne’s own requests, the court calculated Anne’s
reasonable monthly expenses as $6,218.
¶15 	Using these findings and conclusions, the court then
computed Anne’s alimony award. In particular, it concluded that
Anne had a monthly shortfall of $3,449.75 (the difference between
Anne’s expenses and her earning capacity). And it concluded that
Ed had capacity to pay $2,937.11 (the difference between Ed’s
expenses and his earning capacity). The court split the difference
between these figures, in an effort to “equalize the poverty,” as it
were, and therefore ordered Ed to pay alimony to Anne in the
amount of $3,193.43 per month. Separately, however, the court
ruled that, in the event Ed did “receive profit sharing amounts”
from Delta “during the years that [he] is paying alimony” to
4. The court apparently made a minor ten-cent computation error
here: the correct figure, we think, is $2,768.15. On appeal, no party
makes an issue of this de minimis mistake.

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20220067-CA 	8 	2023 UT App 160
Anne, he would be required to make an additional payment to
Anne of half of any such amount, after taxes.
¶16 	The court also made a separate finding regarding the
amount 	that 	the 	parties 	had 	been 	spending 	on 	a 	monthly
basis during the marriage, an amount the court referred to as
“the parties’ marital standard of living.” Using the expenses listed
on Ed’s financial declaration as a starting point (after all, he was
the only one who had filled out the “marital expenses” column on
the 	form) 	and 	then 	making 	certain 	adjustments, 	the 	court
concluded that the parties “marital standard of living” was
$15,745.73 per month. But this figure did not play any role in the
court’s mathematical calculation of Anne’s alimony award; as
noted, the court calculated that amount by computing Anne’s
shortfall and Ed’s ability to pay, and then by “equalizing the
poverty.”
¶17 	The court also made rulings dividing the parties’ property,
assets, and debts, and most of those rulings are not at issue in this
appeal. As relevant here, however, the court awarded Ed offsets
for certain expenditures that “were used for family or child-
related 	expenses, 	for 	which 	[Anne] 	should 	be 	equally
responsible.” Anne also requested offsets, but the court declined
to award them for several reasons, most notably because the court
found that Anne “failed to provide credible and sufficient proof”
supporting her requests. The court also concluded that Anne’s
requests for offsets had not been timely asserted because they
were “first mentioned in her Trial Brief (filed five days before
trial)” and therefore Ed had been deprived of any opportunity to
“conduct discovery on these requested offsets.”
¶18 	Later, the court entered a decree of divorce incorporating
its findings and conclusions. A few weeks after that, Anne filed a
motion 	asking 	for 	a 	new 	trial 	or, 	in 	the 	alternative, 	for
amendments to the decree. The main grievance asserted in this
motion was Anne’s allegation that Ed had withheld relevant
financial information indicating that his income was higher
than 	he 	testified 	at 	trial. 	Shortly 	before 	filing 	this 	motion,

Clarke v. Clarke
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Anne had obtained a copy of Ed’s 2020 W-2 form which, in her
view, indicated that Ed had earned approximately $25,000 per
month 	in 	gross 	income 	during 	October, 	November, 	and
December 2020. Anne argued in her motion that Ed was in
possession of this information during trial—certainly by the
fourth day of trial, which was held in February 2021—but he did
not inform her or the court of these developments. Anne also
claimed that there existed “new evidence” showing that Ed was
back to working at least some overtime hours during 2021 and
that Delta was recovering from the pandemic faster than Ed had
testified.
¶19 	After full briefing, the court denied Anne’s motion, stating
that Anne “did not prove the existence of newly discovered
evidence that existed at the time of the trial (as opposed to facts or
evidence that occurred subsequent to trial),” and noting that a
“petition 	to 	modify 	is 	the 	appropriate 	mechanism 	for 	any
pertinent changes that occur after trial.”
ISSUES AND STANDARDS OF REVIEW
¶20 	Anne now appeals, taking issue with certain aspects of the
court’s post-trial findings and conclusions, as well as with the
court’s denial of her motion for a new trial.
¶21 	As noted, all of Anne’s challenges to the court’s findings
and conclusions involve financial rulings. “In divorce actions, a
[trial] court is permitted considerable discretion in adjusting
the 	financial 	and 	property 	interests 	of 	the 	parties, 	and 	its
actions are entitled to a presumption of validity.” Gardner v.
Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (quotation simplified); see
also Miner v. Miner, 2021 UT App 77, ¶ 11, 496 P.3d 242 (“We
review all aspects of the trial court’s alimony determination for
an abuse of discretion . . . .” (quotation simplified)). “We will
reverse 	only 	if 	(1) 	there 	was 	a 	misunderstanding 	or
misapplication 	of 	the 	law 	resulting 	in 	substantial 	and
prejudicial error; (2) the factual findings upon which the award

Clarke v. Clarke
20220067-CA 	10 	2023 UT App 160
was based are clearly erroneous; or (3) the party challenging the
award shows that such a serious inequity has resulted as to
manifest a clear abuse of discretion.” Gardner, 2019 UT 61, ¶ 18
(quotation simplified). “Appellants have a heavy burden to show
that an alleged error falls into any of these three categories”
because “we can properly find abuse only if no reasonable person
would take the view adopted by the trial court.” Id. (quotation
simplified).
¶22 	Anne also challenges the court’s denial of her motion for a
new trial. “There are two aspects to a court’s decision-making
process in ruling on a motion for new trial, and there are
differences in the manner in which we review each aspect.”
Peterson v. Hyundai Motor Co., 2021 UT App 128, ¶ 30, 502 P.3d 320
(quotation simplified), cert. denied, 509 P.3d 768 (Utah 2022).
“First, a trial court must determine that there exists a problem . . .
that may require a retrial.” Id. ¶ 31. Some of the grounds for retrial
listed in rule 59(a) of the Utah Rules of Civil Procedure “cannot be
found to exist without some sort of factual determination on the
part of the trial court,” and we review any such determination for
abuse of discretion. Id. But other grounds, such as “the existence
of legal errors,” “require no factual determination on the part of
the trial court,” and rulings on these grounds are reviewed for
correctness. 	Id. 	“Second, 	after 	determining that 	an 	error or
impropriety of some kind exists, a trial court must determine
whether the identified errors or improprieties are significant
enough to warrant a retrial.” Id. ¶ 32. And this determination is
usually reviewed for abuse of discretion. Id.
ANALYSIS
¶23 	In this appeal, Anne challenges two aspects of the court’s
rulings regarding the parties’ finances. Chiefly, Anne takes issue
with the court’s alimony award; in her view, the award was, for
several reasons, not big enough. She also asks us to review the
court’s decisions regarding the parties’ claimed offsets. For the
reasons explained below, we reject Anne’s challenges.

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I. Alimony
¶24 	Anne 	assails 	the 	court’s 	alimony 	award 	on 	several
grounds. First, she takes issue with the court’s rulings regarding
Ed’s gross monthly earning capacity. Second, with regard to her
own earning capacity, she challenges the denial of her request that
the court take into account certain claimed business expenses.4F
5
Third, she asserts that the court erred in computing the parties’
net 	(after-tax) 	incomes. 	And 	finally, 	she 	assails 	the 	overall
alimony computation, arguing that the court did not properly
take the parties’ pre-separation standard of living into account in
assessing her reasonable monthly expenses. We discuss each
argument, in turn, and find none of them persuasive.
A. Ed’s Gross Earning Capacity
¶25 	Anne’s challenge to the court’s rulings regarding Ed’s
gross earning capacity has two parts. First, Anne asks us to review
the court’s original findings and conclusions. And second, Anne
takes issue with the court’s denial of her motion for a new trial.
1
¶26 	After considering the evidence presented during the four-
day 	trial, 	the 	court 	made 	findings 	regarding 	Ed’s 	earning
capacity. In particular, it determined that Ed’s current earning
capacity, viewed from the perspective of a trial that occurred in
late 2020 and early 2021, was best estimated by looking at his
income in 2016, 2017, and 2018. In the court’s view, Ed’s 2019
5. Some of these alimony-related complaints—certainly, the first
two—could also potentially affect the child support calculation;
for instance, if we were to sustain either of the first two challenges
Anne raises to the court’s alimony computation, the court’s child
support award would also need to be recomputed. But because
we ultimately reject all of Anne’s alimony-related challenges, we
need not separately address how these challenges might also have
affected child support.

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income was anomalous, because he had worked significantly
more that year than in previous years, and he was unlikely to
work that much in the near future. And the court determined not
to use Ed’s 2020 income either, given the uncertainty in the airline
industry that year due to the pandemic. The court decided that
the best indicator of Ed’s current earning capacity was an average
of the three years prior to these two anomalous years. And the
court determined not to include Delta profit-sharing payments in
the income calculation, on the basis that—at the time of trial—
airlines were struggling due to the pandemic and therefore Ed
was unlikely to receive any profit-sharing payments “in the
foreseeable future.” Using these parameters, the court calculated
Ed’s “gross monthly income” as $20,452.25.
¶27 	There was ample evidence presented during the trial to
support these findings and conclusions. The parties presented tax
returns and paystubs setting forth Ed’s salary and other income,
and Ed offered extensive testimony in this regard that the court
expressly 	found 	credible.5F
6 	The 	court 	also 	heard 	evidence
regarding conditions in the airline industry in 2019 and 2020, and
about the COVID-19 pandemic. The trial record therefore contains
evidence sufficient to support the court’s findings regarding
which years to use in the income calculation, and regarding the
specific amounts computed. And where there exists evidence
sufficient to support a court’s rulings regarding a divorcing
couple’s finances, that ruling will be upheld on appeal, even if
evidence was presented that might have cut the other way. See
6. Anne makes some effort, on appeal, to challenge the court’s
finding that Ed’s testimony about his income and prevailing
economic conditions was credible, offering her view that Ed’s
testimony was actually “uncredible.” We review trial courts’
credibility determinations with a high level of deference, given
their advantaged position in making that assessment. American
Fork City v. Thayne, 2012 UT App 130, ¶ 4, 279 P.3d 840 (“We defer
to the trial court’s ability and opportunity to evaluate credibility
and demeanor.” (quotation simplified)). In this case, we see no
occasion to second-guess the court’s credibility determination.

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Kimball v. Kimball, 2009 UT App 233, ¶ 20 n.5, 217 P.3d 733 (“The
pill that is hard for many appellants to swallow is that if there is
evidence supporting a finding, absent a legal problem—a ‘fatal
flaw’—with that evidence, the finding will stand, even though
there is ample record evidence that would have supported
contrary findings. After all, it is the trial court’s singularly
important mission to consider and weigh all the conflicting
evidence and find the facts.”).
¶28 	Anne resists this conclusion by asserting that the court
specifically erred in excluding any profit-sharing payments from
the income calculation. She points out—correctly—that Utah law
defines “gross income” as including “prospective income from
any source.” See Utah Code § 78B-12-203(1). But the court found—
based on prevailing economic conditions existing at the time of
trial—that Ed was unlikely to “receive profit sharing payments
for the foreseeable future,” and on that basis chose not to include
those amounts in its calculation of Ed’s income. As noted, there
was evidence to support this determination, and it therefore
survives Anne’s appellate challenge.
¶29 	Moreover, we have held that, while trial courts must
“consider all sources of income when determining alimony,”
Utah law “does not dictate that all sources of income be counted
as income received by a spouse for that purpose.” Eberhard v.
Eberhard, 2019 UT App 114, ¶ 21, 449 P.3d 202. Instead, our
case law “preserv[es] a [trial] court’s broad discretion to treat
sources of income as the court sees fit under the circumstances.”
Id. Here, the trial court certainly considered the profit-sharing
component of Ed’s historical income. And after consideration, it
determined 	not 	to 	include 	profit 	sharing 	in 	Ed’s 	income
calculation due to unfavorable economic conditions in existence
at the time of trial, but it did order—separately—that, if economic
conditions improved and Ed ended up receiving profit-sharing
payments from Delta “during the years that [he] is paying
alimony” to Anne, Ed would be “required to pay [Anne] half” of
any such payments. As Ed points out, this order has the potential
to be much better for Anne, in terms of dollars received over time,

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than the order she is now asserting the court should have entered.
But more to the point, it was well within the court’s discretion to
craft 	this 	sort 	of 	creative 	solution 	to 	the 	parties’ 	alimony
conundrum.
¶30 	In short, the trial court’s findings regarding Ed’s gross
monthly earning capacity were amply supported by evidence
presented during the trial, and the court’s final computations and
orders were not an abuse of its discretion.
2
¶31 	Next, Anne takes issue with the court’s decision to deny
her motion for a new trial. In that motion, Anne asked the
court to order that a new trial be held in light of information—
that she claimed was new—regarding Ed’s income. In particular,
Anne 	asserted 	that 	Ed 	had, 	during 	trial, 	withheld 	relevant
financial information indicating that his income in late 2020
and early 2021 was higher than he testified at trial. Anne also
claimed that there existed “new evidence” that Ed was back to
working at least some overtime hours during 2021 and that
Delta was recovering from the pandemic faster than Ed had
testified. The court denied Anne’s motion, and declined her
invitation to order a new trial. We perceive no error in this
determination.
¶32 	Under applicable rules, a new trial “may be granted to any
party on any issue” for any one of several enumerated reasons.
See Utah R. Civ. P. 59(a). Those reasons include “irregularity in
the proceedings of the court, . . . or any order of the court, or abuse
of discretion by which a party was prevented from having a fair
trial,” id. R. 59(a)(1); “newly discovered material evidence that
could not, with reasonable diligence, have been discovered and
produced 	at 	the 	trial,” 	id. 	R. 	59(a)(4); 	“insufficiency 	of 	the
evidence to justify the verdict or other decision,” id. R. 59(a)(6);
and “the verdict or decision [being] contrary to law or based on
an error in law,” id. R. 59(a)(7). Anne asked for a new trial under
each of these subsections, and we discuss them in turn.

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¶33 	Rule 59(a)(1): Anne first argues that she is entitled to a new
trial because of an irregularity in the proceedings. She points to
Ed’s 2020 W-2 form, which she obtained in September 2021
(several months after the conclusion of the trial), and she asserts
that Ed’s testimony at trial was inconsistent with that document.
She characterizes Ed’s testimony as materially inaccurate, and she
accuses him of being less than candid with the court.6F
7 Based on
these assertions, she concludes that there was an irregularity in
the trial proceedings sufficient to justify a new trial.
¶34 	In 	this 	vein, 	Anne 	asserts 	that 	Ed 	had 	an 	ongoing
obligation, which continued even during trial, to supplement his
pretrial disclosures with up-to-date financial information. She
acknowledges 	that 	Ed 	provided 	then-current 	financial
information in his final pretrial disclosures, which the court
ordered the parties to exchange some three weeks prior to trial;
this 	information 	included 	Ed’s 	September 	2020 	paystub,
including year-to-date income information. But she asserts that,
despite Ed’s compliance with the court’s pretrial disclosure order,
Ed violated his ongoing supplementation obligation, an event she
asserts contributed to creating an “irregularity” in the trial
proceedings. She points out that, even though the trial was
originally scheduled to conclude over three days in November
2020, the court eventually scheduled a fourth trial day to take
7. Anne even goes so far as to assert that Ed violated rule 3.3 of
the Utah Rules of Professional Conduct, a rule that requires
licensed attorneys to be candid and honest toward the tribunal.
But such rules apply only to attorneys, and Ed is not an attorney.
See Utah State Bar v. Jardine, 2012 UT 67, ¶ 64, 289 P.3d 516 (“The
policies underlying the Rules of Professional Conduct are directed
toward the behavior of the lawyer.”). Moreover, violations of such
rules are typically addressed in Bar disciplinary proceedings, and
not by a court during the course of a lawsuit. And a violation of
such rules, even if demonstrated, does not necessarily lead to a
conclusion that there has been the sort of “irregularity in the
proceedings” that warrants a new trial under rule 59(a)(1). We
therefore consider Anne’s citation to rule 3.3 to be unhelpful here.

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place in February 2021. She acknowledges that, ordinarily, a party
discharges its pretrial disclosure obligations by complying with
the court’s pretrial disclosure order, but she asserts that, under the
unique circumstances of this case—in which trial was extended
for another three months, into another calendar year—Ed became
obligated to update his financial disclosures without further order
of the court and without any request on her part.
¶35 	We are unpersuaded. When it scheduled the fourth trial
date, the court did not amend its pretrial disclosure order, or
otherwise 	command 	the 	parties 	to 	update 	their 	financial
disclosures, one more time, prior to that trial date. We also note
that Anne herself did not attempt to supplement her disclosures
during trial (for instance, she did not provide her own year-end
2020 financial information to Ed prior to the fourth trial date in
February), nor did she complain to the trial court, during trial,
about Ed’s failure to do so.
¶36 	And Anne cites no statute or case law in support of the
specific position she advocates. The only rules to which she
directs our attention are the ones containing parties’ general
disclosure and supplementation obligations. See Utah R. Civ. P.
26(d)(5), 26.1. We acknowledge Anne’s point, and certainly agree
with 	her 	that, 	during 	litigation, 	parties 	have 	ongoing
supplementation 	obligations 	regarding 	their 	discovery
disclosures. But we are aware of no specific rule compelling
parties to continue to provide updated financial information after
the final pretrial disclosure deadline; indeed, as we understand it,
trial courts often set such deadlines so that trials can proceed in
an orderly fashion and facilitate assessment of the litigants’
situation as of the date of the final financial disclosures.
¶37 	Moreover, in the family law context, there exists a specific
remedy 	for 	situations 	in 	which 	a 	party’s 	income 	changes
materially after a trial has been held and findings about the
parties’ financial situation have been made: a party may file a
petition to modify the existing order. See id. R. 106; Utah Code
§§ 30-3-5(11)(a), 78B-12-210(8). Indeed, in this case, the trial court

Clarke v. Clarke
20220067-CA 	17 	2023 UT App 160
denied Anne’s motion for a new trial, at least in part, because it
concluded 	that 	a 	“petition 	to 	modify 	is 	the 	appropriate
mechanism” for addressing “any pertinent changes” in Ed’s
income that have occurred “subsequent to trial.” We agree with
the trial court that, ordinarily, the petition to modify remedy is the
method that should be used to address post-trial changes in
divorcing parties’ financial status. That remedy remains open to
Anne here, despite the court’s denial of her motion for a new trial.
¶38 	For all of these reasons, we perceive no abuse of discretion,
under the circumstances presented here, in the trial court’s
conclusion that Ed’s failure to provide ongoing paystubs and W-2
forms 	he 	received 	after 	the 	court’s 	final 	pretrial 	disclosure
deadline 	did 	not 	constitute 	the 	sort 	of 	“irregularity 	in 	the
proceedings” that would justify a new trial.
¶39 	Rule 59(a)(4): Next, Anne argues that a new trial is
necessary because of newly discovered evidence. See Utah R. Civ.
P. 59(a)(4). Again, she points to Ed’s 2020 and 2021 W-2 forms, as
well as new evidence about Delta’s 2021 resurgence, and asserts
that 	this 	evidence 	constitutes 	“newly 	discovered 	material
evidence” that would justify a new trial. We remain unpersuaded.
¶40 	As an initial matter, “a motion for a new trial or amended
judgment cannot be based on facts occurring subsequent to trial.”
In re C.L., 2007 UT 51, ¶ 14, 166 P.3d 608 (quotation simplified).
“Otherwise, there would be no end to litigation.” Id. (quotation
simplified). Some of the “newly discovered evidence” obviously
fits into this category: Ed’s 2021 W-2 was not available until well
into 2022, and evidence of Delta’s 2021 resurgence was not
available during any of the trial dates in this case.
¶41 	Ed’s 2020 W-2 form, on the other hand, may well have been
available, at least to Ed, prior to the fourth and final trial date in
this case, which took place on February 11, 2021. But in order to
demonstrate that the evidence in question is the kind of evidence
that fits within rule 59(a)(4), Anne must show that the evidence
“could not, by due diligence, have been discovered and produced

Clarke v. Clarke
20220067-CA 	18 	2023 UT App 160
at trial.” Id. ¶ 12 (quotation simplified); see also Utah R. Civ. P.
59(a)(4) (stating that, to be “newly discovered material evidence,”
the evidence in question “could not, with reasonable diligence,
have been discovered and produced at the trial”). In our view,
Anne has not carried her burden of demonstrating that Ed’s 2020
W-2 form could not have been discovered and discussed during
the February 11 trial date. Ed testified during the proceedings on
February 11, and Anne’s attorney had the opportunity to ask Ed
questions that day. Yet Ed was not asked any questions about his
income during late 2020 or early 2021, and in particular he was
not asked if his income had changed appreciably in the months
since September 2020, the last month for which documentary
information had been presented during the November 2020 trial
dates. We are hard-pressed to conclude that information about
Ed’s income during the last three months of 2020 and the first two
months of 2021 “could not, with reasonable diligence, have been
discovered and produced” at the February 11 trial date, when
Anne had the chance to ask Ed about those issues and did not.
¶42 	For these reasons, we discern no abuse of discretion in the
trial court’s determination that no new trial was warranted under
rule 59(a)(4).
¶43 	Rule 59(a)(6): Next, Anne suggests that the trial court
should have granted a new trial on the basis that there was
insufficient evidence to justify its conclusions. See Utah R. Civ. P.
59(a)(6). We need not discuss this issue further, however, given
our conclusions—set forth above—that sufficient evidence existed
to support the trial court’s original findings and conclusions
regarding Ed’s gross earning capacity.
¶44 	Rule 59(a)(7): Finally, Anne asserts that the trial court
should have granted a new trial because its initial findings
regarding Ed’s income were “contrary to law or based on an error
in law.” See id. R. 59(a)(7). But in this regard, Anne does not make
any additional arguments that we have not already addressed; as
noted, we perceive no legal error in the court’s findings and
conclusions regarding Ed’s gross earning capacity, and no legal

Clarke v. Clarke
20220067-CA 	19 	2023 UT App 160
error 	in 	the 	way 	the 	court 	conducted 	the 	trial, 	including
specifically its pretrial disclosure order.
¶45 	Accordingly, we see no infirmity in the court’s rulings
regarding Ed’s gross earning capacity. Its initial findings and
conclusions were supported by sufficient evidence, and the court
did not err in denying Anne’s motion for a new trial and advising
Anne to address the issues raised there, if at all, in the context of
a petition to modify the decree.
B. Anne’s Business Expenses
¶46 	Anne’s 	next 	challenge 	to 	the 	court’s 	alimony 	award
involves one aspect of its ruling regarding her own earning
capacity. As noted, the court determined that Anne’s gross
earning capacity was $3,158.50 per month; it derived that figure
by averaging her earnings from 2015 through 2019. The court
declined Anne’s invitation to subtract business expenses from
that figure, concluding that Anne had “failed to explain which, if
any, business expenses claimed on her tax returns are necessary
to allow [her clothing enterprise] to operate at a reasonable level.”
Anne takes issue with the court’s refusal to subtract her claimed
business expenses from her monthly gross income computation.
¶47 	Under applicable statutory guidance, when a court is
assessing a self-employed person’s gross income, the court shall
“subtract[] necessary expenses required for self-employment or
business operation from gross receipts.” Utah Code § 78B-12-
203(4)(a). However, “[o]nly those expenses necessary to allow the
business to operate at a reasonable level may be deducted from
gross receipts.” Id. “The person claiming business expenses” bears
the burden of proving that the claimed “expenses are necessary to
allow the business to operate at a reasonable level.” See Ouk v.
Ouk, 2015 UT App 104, ¶ 4, 348 P.3d 751 (quotation simplified).
Thus, Anne bore the burden of demonstrating, at trial, that her
claimed business expenses were necessary to allow her business
to operate at a reasonable level. The trial court concluded that
Anne failed to carry that burden.

Clarke v. Clarke
20220067-CA 	20 	2023 UT App 160
¶48 	At trial, Anne pointed to the “Schedule Cs” on her 2017,
2018, and 2019 tax returns as evidence of her business expenses.
There, she claimed expenses for “Office expense,” “Supplies,”
“Travel,” and “Utilities,” among other more minor items. The
trial court explained its reasoning for rejecting Anne’s claim
on these items. With regard to “Office expense,” the court
noted that Anne “did not explain what actual and necessary
business 	expense 	this 	would 	entail,” 	and 	that 	Anne 	had
“admitted that she does not have an office outside her home.”
With 	regard 	to 	“Utilities,” 	the 	court 	noted 	that 	Anne 	had
acknowledged 	that 	this 	expense 	was 	simply 	“personal
expenses that she is permitted to write off for tax purposes,”
and 	that 	Anne 	was 	unable, 	during 	her 	trial 	testimony, 	to
“be certain what her claimed ‘Utilities’ expenses entailed.” And
with regard to “Supplies,” the court concluded that the figure
Anne listed on her tax returns was confusing, because it was
unclear, even after Anne’s trial testimony, whether this figure
properly accounted for revenue Anne received from selling some
of these supplies “at the end of each season.” Given these
evidentiary deficiencies, the court found that Anne “failed to meet
her burden to demonstrate that the claimed business expenses are
only those necessary to allow her business to operate at a
reasonable level.”
¶49 	We perceive no infirmity in this determination. Anne
offered very little testimony about her business expenses, and she
supported that testimony only with her tax returns. In its ruling,
the 	court 	identified 	several 	legitimate 	concerns 	about 	the
persuasiveness 	of 	the 	evidence 	Anne 	presented, 	and 	it
determined that Anne had not carried her burden of proof. Trial
courts have discretion to credit, or not credit, evidence presented
to them. See id. ¶ 14 (stating that “the fact-finder is in the best
position to judge the credibility of witnesses and is free to
disbelieve their testimony” (quotation simplified)). Thus, under
the circumstances of 	this case, the court did not abuse its
discretion by finding that Anne had failed to carry her burden to
prove the necessity of her business expenses.

Clarke v. Clarke
20220067-CA 	21 	2023 UT App 160
C. Net Income Calculations
¶50 	Anne’s next challenge to the alimony award involves the
court’s net income calculations. She argues that, in assessing the
impact of taxes on gross income, the court “miscalculated” her net
income and “treated [her] differently than” it treated Ed.
¶51 	Anne provided no testimony or documentary evidence
regarding net income. That is, she offered the court no assistance
in computing net income from the court’s gross income figures.
And neither party hired an accountant or offered testimony from
any other financial professional. Given these evidentiary realities,
the court noted that it was “difficult to ascertain the amount of
tax” Anne “actually pays,” especially given certain then-recent
changes in the tax code regarding alimony. In the absence of better
evidence, the court simply looked to Anne’s tax returns, which
showed that, in 2017, Anne had paid $390.35 per month in
combined federal and state taxes. The court then subtracted that
number from its monthly gross income finding ($3,158.50), and
found that Anne’s monthly net income, for alimony purposes,
was $2,768.25. On appeal, Anne does not lodge any specific
objection to this methodology at a conceptual level.
¶52 	Instead, she complains that the court did not compute her
net income in the same way as it computed Ed’s. In this, Anne is
correct: the court did compute Ed’s net income in a different way.
For Ed, the court simply took his gross income figure and applied
a tax rate to it. As noted above, the court found that Ed’s monthly
gross earning capacity was $20,452.25. The court simply applied
“current tax rates” to that figure, without accounting for any
potential tax deductions. Using this methodology, the court
computed Ed’s monthly net income as $13,358.32.
¶53 	Anne complains that using two different methodologies
resulted in potential inequity: by using Anne’s actual “tax paid”
figure from years past, the court accounted for any tax deductions
she had taken, but by simply applying a tax rate to Ed’s gross
income figure, the court did not similarly account for any tax

Clarke v. Clarke
20220067-CA 	22 	2023 UT App 160
deductions Ed might take in the future and effectively assumed
that he wouldn’t take any. We take Anne’s point that, as a general
matter and where possible, courts should compute divorcing
parties’ 	net 	incomes 	for 	alimony 	purposes 	using 	the 	same
methodology. 	But 	courts 	in 	appropriate 	cases 	may 	find 	it
necessary to employ differing methodologies for computing
spouses’ respective net incomes, and we cannot say that the court
abused its discretion by doing so here.
¶54 	In this case, there are differences between Anne’s and Ed’s
situations. For starters, Anne did not offer any testimony or
evidence regarding how the court should go about calculating her
net income, so the court used the information it was given. More
specifically, Anne did not provide the court any assistance in
navigating the changes to the tax code regarding alimony. And
with regard to Ed, the court would have found it difficult to use
the “tax paid” figure from past tax returns, given that this figure
may have included taxes paid on profit-sharing income, which the
court had determined not to include in Ed’s future monthly gross
income estimate. And as Ed points out, some of the key tax
deductions he would have taken in past years (such as for
children) would not be available to him in the future.
¶55 	In our view, given the absence of any expert financial
testimony, and given the paucity of assistance the parties offered
the court in making these calculations, the court in this instance
made 	findings 	within 	its 	discretion 	and 	supported 	by 	the
evidence it was given. While we generally advise trial courts to
use mirror-image methodologies to compute parties’ respective
net incomes in family law cases, we cannot say that Anne has
carried her appellate burden of demonstrating that the court
abused its discretion by making the calculations it made.
D. Overall Alimony Computation
¶56 	The final challenge Anne raises to the court’s alimony
award is a more general one: she questions the formula the court
used to arrive at its computation, and specifically challenges the

Clarke v. Clarke
20220067-CA 	23 	2023 UT App 160
manner in which the court assessed her reasonable monthly
expenses. She notes that the court went to the trouble of making
a finding regarding the parties’ overall marital standard of
living ($15,745.73 per month), but she observes—correctly—that
it is “unclear what role the marital standard of living then
plays in the [c]ourt’s alimony determination.” And she points
out that the court “did not use [this figure] as any sort of
‘baseline.’” It is not entirely clear exactly what Anne believes
the 	court 	should 	have 	done 	with 	its $15,745.73 	figure, 	but
she complains that the court did not take it—and the marital
standard 	of 	living—appropriately 	into 	account 	in 	assessing
her 	expenses, 	and 	she 	laments 	that 	the 	court 	“based 	its
alimony award wholly on [Anne’s] actual expenses at the time of
trial.”
¶57 	We see at least two problems with Anne’s argument, one
general 	and 	one 	case-specific. 	At 	a 	general 	level, 	Anne
misunderstands the formula that is to be used to compute
alimony awards. As we recently observed, courts should not
calculate 	alimony 	by 	simply 	dividing 	the 	couple’s 	pre-
separation expenses in half. See Fox v. Fox, 2022 UT App 88,
¶¶ 18-19, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022).
Indeed, we noted that “[t]here is usually no need for a trial court
to make a separate specific finding regarding the overall ‘marital
standard of living’ as measured by the total amount of money
spent each month by the couple while they were married.” Id.
¶ 19. Such a finding is typically unnecessary; it is not one of the
input variables that a court needs to assess before computing an
alimony award.
¶58 	In this case, the court did go to the trouble of making a
finding about the parties’ monthly expenses prior to separation
($15,745.73). But as Anne points out, the court did not use that
figure in its ultimate alimony calculation. In this case (as, we
suspect, in most cases), such a finding was not necessary and only
served to complicate matters. The court did not need to make this
finding at all, and its failure to use the $15,745.73 figure in its
alimony calculation was not error.

Clarke v. Clarke
20220067-CA 	24 	2023 UT App 160
¶59 	To be sure, trial courts may not ignore the marital standard
of living when making an alimony award. The pre-separation
standard of living must be taken into account, because the
primary purpose of alimony is “to get the parties as close as
possible to the same standard of living that existed during the
marriage.” See Rule v. Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153
(quotation simplified). But the way a court should take that
standard into account is by assessing a party’s claimed line-item
expenses in light of that standard, and not by making an overall-
expenses finding and chopping it in half. See Fox, 2022 UT App 88,
¶¶ 19–21, 24; see also Miner v. Miner, 2021 UT App 77, ¶ 20, 496
P.3d 242 (examining each of the claimed line-item expenses “with
the marital standard of living in mind”). To give effect to the
marital standard of living, courts should—as a general rule—
assess parties’ expenses as of the time of separation and not as of
the time of trial. See Rule, 2017 UT App 137, ¶ 16 (cautioning
“against determining alimony based upon actual expenses at the
time of trial because . . . a party’s current, actual expenses may be
necessarily 	lower 	than 	needed 	to 	maintain 	an 	appropriate
standard of living for various reasons, including, possibly, lack of
income” (quotation simplified)). But “in appropriate situations
with regard to certain line items, a court may apply equitable
principles, in its discretion, to base alimony on the standard of
living that existed at the time of trial.” See Miner, 2021 UT App 77,
¶ 18 (quotation simplified). To assist with this process, the
financial declaration form often used in family law cases—and
used in this case—includes two columns for each expense item,
one for “current amount” and one for “marital expenses.”
¶60 	And this leads us to the case-specific problem with Anne’s
argument: 	Anne 	provided 	the 	court 	with 	only 	time-of-trial
expenses, and the court gave Anne credit for more or less
everything she asked for on her financial declaration.
¶61 	The trial court, after making its superfluous “marital
standard of living” finding, then proceeded to use the correct
formula to compute Anne’s alimony award. See Fox, 2022 UT App
88, ¶ 20. As relevant here, it correctly assessed “the needs of the

Clarke v. Clarke
20220067-CA 	25 	2023 UT App 160
parties, in light of their marital standard of living.” See id.
(quotation simplified). In assessing Anne’s expenses, the court
simply gave Anne everything she asked for—to the dollar—in her
most recent financial declaration, with only a few exceptions. The
court found that a few of the listed expenses were “post-
separation debt for which [Anne] is solely responsible,” and it
therefore deducted those expenses from the calculation.7F
8 And
without being asked to do so, the court added to Anne’s list a line
item for health care expenses. With regard to all the rest of Anne’s
claimed expenses, the court found that these expenses were
“reasonable in light of the marital standard of living.” With these
adjustments, and based largely on Anne’s own requests, the court
calculated Anne’s reasonable monthly expenses as $6,218.
¶62 	We perceive no error in the court’s analysis of Anne’s
reasonable expenses. It is significant that Anne did not provide
the court, in her financial declaration or in her trial testimony,
with any evidence regarding the “marital expenses” amount for
her claimed line items. If a party offers into evidence only time-
of-trial expense amounts, and does not provide the court with any
evidence of pre-separation expenses (to the extent they are
different), that party has no right to complain when the court
awards the time-of-trial amounts. Any complaint on Anne’s part
that the court failed to appropriately take the marital standard of
living into account in assessing these expenses rings hollow when
Anne herself apparently didn’t take the marital standard of living
into account in making her claims, and where the court—more or
less—credited Anne with all of the expenses she was claiming.
¶63 	We therefore reject all of Anne’s challenges to the court’s
alimony award. The court employed the proper formula, and all
of its determinations were supported by sufficient evidence and
were within the court’s discretion.
8. On appeal, Anne does not take issue with the court’s deduction
of these post-separation debts from her expenses.

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II. Offsets
¶64 	The only non-alimony argument Anne raises concerns the
court’s rulings regarding the parties’ claimed offsets. During trial,
both parties claimed that they should each receive credits, or
“offsets,” for purchases made using their personal funds that they
believed both parties should be equally responsible for. Ed sought
reimbursement of payments he made for maintenance of the
marital home and for certain child-related expenses. For her part,
Anne sought repayment of other child-related expenses and of
costs incurred in moving out of the marital home, and she sought
equalization for various other instances where she alleged Ed had
used her personal funds. In its post-trial ruling, the court granted
Ed’s requests for offsets, but declined to grant Anne’s requests.
The court determined that Anne’s requests were “not credible and
not 	proven” 	because 	Anne 	“failed 	to 	provide 	credible 	and
sufficient proof” supporting her claims. The court also concluded
that Anne’s requests for offsets had not been timely asserted
because they were “first mentioned in her Trial Brief (filed five
days before trial)” and therefore Ed had been deprived of any
opportunity to “conduct discovery on these requested offsets.”
¶65 	Anne contends that the court should not have denied her
requests and granted Ed’s, and again complains that the court
treated her differently than it treated Ed. She directs much of her
appellate ire at the court’s secondary reason for its ruling—that
Anne’s requests were not timely made—and asserts that Ed’s
requests suffered from the same infirmity. While the court did
note that Anne did not timely disclose her offset requests, we do
not perceive that as the primary basis for the court’s denial of her
requests. Rather, the court’s main concern was that Anne had not
carried her burden of proving her requested offsets. By contrast,
the court determined that Ed had proven his requested offsets,
and that he had done so through a spreadsheet exhibit and
“credible” testimony.
¶66 	On appeal, Anne does little to engage with the court’s
conclusion that her claims—unlike Ed’s—were “not credible and

Clarke v. Clarke
20220067-CA 	27 	2023 UT App 160
not proven.” Rather, Anne lists the offset awards and denials that
she disagrees with, and she offers her view that the rulings were
in error. She makes conclusory statements about who paid certain
expenses, without proper record citations for those propositions.
And for several of the offsets awarded to Ed, Anne claims that
there was insufficient evidence, but she does not explain how or
why Ed’s spreadsheet exhibit, coupled with his testimony that the
court found credible, does not constitute sufficient evidence.
¶67 	“An appellant bears the burden of persuasion on appeal,
and this burden includes engaging with and responding to the
grounds for the decision the appellant is challenging on appeal.”
In re A.B., 2022 UT 39, ¶ 39, 523 P.3d 168 (quotation simplified). In
this 	case, 	Anne 	has 	not 	carried 	her 	appellate 	burden 	of
demonstrating that the court erred in its offset determinations.
CONCLUSION
¶68 	The 	trial 	court’s 	post-trial 	findings 	and 	conclusions
regarding alimony and offsets were all supported by sufficient
evidence and were not an abuse of its discretion. And the court
did not err in denying Anne’s motion for a new trial. For all of
these reasons, we reject Anne’s appellate challenges.
¶69 	Affirmed.