Paulsen v. Paulsen

2018 UT App 22

THE UTAH COURT OF APPEALS

HOLLY PAULSEN,
Appellee,
v.
KEITH PAULSEN,
Appellant.

Opinion
No. 20151014-CA
Filed February 1, 2018

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 034701322

Matt G. Wadsworth, Attorney for Appellant
Holly Paulsen, Appellee Pro Se

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and DIANA HAGEN concurred.

TOOMEY, Judge:

¶1 Keith Paulsen appeals the district court’s denial of his
motion for summary judgment in connection with his petition to
modify the parties’ divorce decree to decrease his monthly
alimony obligation. He also challenges the court’s findings
entered after trial on the petition to modify. We affirm in part
and vacate in part and remand.

¶2 The parties obtained a bifurcated divorce decree in
November 2004, reserving several issues for trial. Following trial
in late 2005, the district court entered a second decree in which it
Paulsen v. Paulsen

awarded Keith 1 legal and physical custody of the parties’ five
children and ordered him to pay Holly $1,408 per month in
alimony with an offset of $408 for child support, leaving a net
alimony payment of $1,000 per month. The court determined
that Holly was underemployed and imputed to her income of
$1,850 per month. The court found Holly’s monthly expenses to
be $2,949 per month.

¶3 In 2013, Keith petitioned to modify the decree, asking the
district court to terminate his alimony obligation to Holly. The
basis for Keith’s petition was Holly’s alleged ability to earn no
less than $3,467 per month and a reduction in her monthly
expenses by virtue of nearly having satisfied her mortgage.
Keith’s petition also stated that his alimony obligation was
$1,000 per month.

¶4 Holly answered Keith’s petition, denying that she was
capable of earning $3,467 per month. Holly admitted she was
close to satisfying her mortgage “but denie[d] that she [did] not
have a housing expense.” Holly noted that her interpretation of
the decree’s alimony award differed from Keith’s: “the alimony
was actually $1408.00 with a child support off set of $408.00
leaving a net of $1000.00. Now that all of the children are
emancipated the alimony amount is $1408.00.” She also argued
that Keith “has failed to take into account the Jones v. Jones
factors which include the current living expenses of [Holly] and
[Keith’s] ability to assist in those expenses.”

¶5 In October 2014, Keith filed a motion for summary
judgment “on the broad issue of alimony.” In his supporting
memorandum, he stated that, according to Holly’s paystubs,
“she now makes $16.00 per hour or $33,280.00 yearly. This

1. “As is our practice in cases where both parties share a last
name, we refer to the parties by their first name with no
disrespect intended by the apparent informality.” Smith v. Smith,
2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.

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equates to $2,773.33 per month gross or $2,357.33 net per
month.” He also alleged that Holly told him that “she now
makes over $3,200 per month.” As to Holly’s expenses, he
merely cited the district court’s finding at the time alimony was
initially set that her monthly expenses were $2,949 per month.
Keith also pointed out that, at that time, Holly had yet to file a
completed financial declaration. Keith did not include any facts
regarding his financial situation. In his memorandum, he argued
a substantial material change in circumstances had occurred
because Holly’s income had increased and she was close to
paying off her mortgage. In addition, he argued that his alimony
obligation should be decreased based on several expenses he
thought should not have been included when the court made its
initial alimony determination.

¶6 In response to Keith’s motion for summary judgment,
Holly filed a cross-motion for summary judgment and a
combined memorandum supporting her cross-motion for
summary judgment and opposing Keith’s motion for summary
judgment. The memorandum argued Keith had “failed to
demonstrate a substantial change in circumstances not
contemplated at the time the Decree was entered,” because
“[t]he amount and length of the mortgage was understood by
the trial court at the time” the decree of divorce was entered.
Holly did not dispute the facts Keith alleged in his motion for
summary judgment.

¶7 Keith responded, noting that his motion’s statement of
facts “were entirely unrebutted and therefore must be deemed
admitted as a matter of law.” Accordingly, he argued, Holly
“has no further need of alimony.” Keith further argued that the
divorce decree was “‘bereft of any reference to the changed
circumstance at issue’” and therefore was “‘not contemplated in
the original divorce decree.’” (Quoting Wall v. Wall, 2007 UT
App 61, ¶ 12, 157 P.3d 341.)

¶8 The district court heard these matters in January 2015 and
denied both motions for summary judgment. In explaining the

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basis for denying Keith’s motion, the court stated, “I simply do
not have enough facts at this point and it’s not correct that as a
matter of law that I can determine this . . . . I don’t have enough,
in [Keith’s] motion for instance, to even show me what the
expenses of [Holly] are.” The court reiterated that it did not have
sufficient facts and that it was not simply a matter of Holly’s
failure to respond to Keith’s motion for summary judgment. The
court continued, “I just am not in a position to be able to rule on
a motion for summary judgment and say as a matter of law, that
in fact, there ought to be a modification of the alimony award.”

¶9 Before trial, Keith and Holly filed several financial
declarations, updating their declarations as necessary. In Holly’s
January 2015 declaration, she declared that her gross income was
$2,650 per month (including $50 per month in support from her
adult children), that her net income was $2,397.76, and that her
expenses were $4,782 per month. Notably, her expenses did not
include a mortgage payment, because she had paid off her
house. In July 2015, Holly filed her final updated financial
declaration. The updated declaration reflected that her gross
income was $2,750 per month, an increase of $100 due to an
increase in the declared support from her adult children, and
that her net income was $2,505.19 per month. Her claimed
expenses decreased to $4,675 per month. Holly arrived at this
number after adding some expenses and deducting others. She
added the following monthly expenses: $500 for a home equity
line of credit she had opened, an additional $300 for attorney
fees, and $200 for contributions to her daughter’s church
mission, equaling a total of $1,000 of added expenses. She
deducted the following monthly expenses: $207.10 in credit card
payments, $300 in savings contributions, $200 less in donations,
and $400 less in personal debt payments, equaling a total of
$1,107.10 in deductions.

¶10 Keith’s final updated financial declaration declared that
his gross income was $11,666 per month, that his net income was

20151014-CA 4 2018 UT App 22
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$8,632 per month, and that his expenses were $21,216.25 per
month.

¶11 The petition to modify finally reached the trial stage in
late August 2015. In November, the district court entered its
findings of fact and conclusions of law. Among other things, the
court stated that Keith’s “testimony regarding his financial
situation is not credible,” that “[s]ome expenses listed by [Keith]
are not current, actual expenses,” and that “[o]ther stated
expenses . . . [Keith] claims are not credible nor otherwise
appropriate.” Despite these findings, the court decreased Keith’s
monthly alimony obligation from $1,000 to $117.

¶12 The district court based its decision to reduce alimony on
several findings regarding Holly’s financial situation. It found
that her “reduced mortgage expense and the 33% income
increase constitutes a substantial change in material
circumstances.” It also found that some of Holly’s claimed
expenses did not exist at the time alimony was initially
determined and therefore reduced them. In making its
calculations, the court used figures from Holly’s January 2015
financial declaration, not her final updated financial declaration.
After reducing Holly’s claimed expenses, the court found that
her appropriate monthly expenses were $2,464.90. The court
found that Holly’s net monthly income was $2,347.76. It
apparently arrived at this figure by taking Holly’s claimed net
income in her January 2015 financial declaration and subtracting
the $50 of support from Holly’s adult children. Finally, the court
arrived at the reduced alimony figure of $117 by calculating the
difference between Holly’s appropriate expenses and net
income. Keith filed a timely notice of appeal. 2

2. The notice of appeal indicated that the appeal was directed to
the Utah Supreme Court, and Keith’s brief characterized this as a
case over which the supreme court has jurisdiction. But the court
of appeals has original jurisdiction over this appeal, and the
(continued…)

20151014-CA 5 2018 UT App 22
Paulsen v. Paulsen

¶13 Keith first contends the district court erred by not
granting his motion for summary judgment where the facts
alleged in the motion were either undisputed or uncontroverted
by Holly. Summary judgment is proper where there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Utah R. Civ. P. 56(a). We review a
district court’s ruling on a motion for summary judgment for
correctness. Johansen v. Johansen, 2002 UT App 75, ¶ 4, 45 P.3d
520.

¶14 We focus our analysis on the second prong of the
summary judgment standard—whether Keith is entitled to
judgment as a matter of law. To be entitled to judgment as a
matter of law on his petition to modify the decree of divorce,
Keith was first required to show that Holly’s increased income
and satisfaction of her mortgage constituted “a substantial
material change in circumstances not foreseeable at the time of
the divorce.” Utah Code Ann. § 30-3-5(8)(i)(i) (LexisNexis Supp.
2017). Then, if he succeeded in making this showing, the district
court was required to consider several factors before making an
alimony determination, including (1) “the financial condition
and needs of the recipient spouse,” (2) “the recipient’s earning
capacity or ability to produce income,” and (3) “the ability of the
payor spouse to provide support.” Id. § 30-3-5(8)(a)(i)–(iii); accord
Moon v. Moon, 1999 UT App 12, ¶ 29, 973 P.2d 431. Consideration
of these factors is critical to achieving the purposes of alimony,
which are: “(1) to get the parties as close as possible to the same
standard of living that existed during the marriage; (2) to
equalize the standards of living of each party; and (3) to prevent
the recipient spouse from becoming a public charge.” Rule v.
Rule, 2017 UT App 137, ¶ 14, 402 P.3d 153 (citation and internal
quotation marks omitted).

(…continued)
appeal was redirected to this court accordingly. See Utah Code
Ann. § 78A-4-103(2)(h) (LexisNexis Supp. 2017).

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Paulsen v. Paulsen

¶15 Because Keith’s alleged facts did not address Holly’s
current financial expenses or his ability to pay, the district court
was unable to fully consider the required factors before making
an alimony determination. Thus, Keith had not demonstrated
that he was entitled to judgment as a matter of law.

¶16 We note that the district court could have independently
concluded Keith did not satisfy his burden of showing that
Holly’s increased income and satisfaction of her mortgage
constituted a substantial material change in circumstances not
foreseeable at the time of the divorce. See MacDonald v. MacDonald,
2017 UT App 136, ¶¶ 9–14, 402 P.3d 178, cert. granted (Utah 2017)
(discussing the foreseeability element and concluding that
“foreseeable” “includes not only those circumstances which the
parties or the court actually had in mind, but also circumstances
that could ‘reasonably be anticipated’ at the time of the decree”).
First, the divorce decree specifically stated, “Each party is
awarded the home in which they live including all equity and
each shall pay the mortgage.” Thus, not only did the decree
contemplate that the mortgage would eventually be paid off, but
it was also foreseeable that it would be. Second, Keith did not
demonstrate that Holly’s incremental increase in income over
nearly a decade was unforeseeable. In his motion, Keith did not
address the foreseeability element of the changed circumstances
standard. 3 Accordingly, we conclude the district court did not
err in denying Keith’s motion for summary judgment.

¶17 Keith next contends the district court abused its discretion
by reducing rather than terminating his alimony obligation. In
connection with this contention, Keith argues the court’s
findings as to Holly were inadequate and clearly erroneous. We

3. The foreseeability element became statutorily required in 1995.
See Utah Code Ann. § 30-3-5(7)(g)(i) (Lexis Supp. 1995); accord
MacDonald v. Macdonald, 2017 UT App 136, ¶ 9, 402 P.3d 178, cert.
granted (Utah 2017).

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will not disturb a district court’s ruling on alimony “as long as
the court exercises its discretion within the bounds and under
the standards we have set and has supported its decision with
adequate findings and conclusions.” Mark v. Mark, 2009 UT App
374, ¶ 6, 223 P.3d 476 (citation and internal quotation marks
omitted). “Findings of fact are adequate to support the district
court’s financial determinations only when they are sufficiently
detailed to disclose the steps by which the district court reached
its ultimate conclusion on each issue,” Oldroyd v. Oldroyd, 2017
UT App 45, ¶ 5, 397 P.3d 645, and “follow[] logically from, and
[are] supported by, the evidence,” Bakanowski v. Bakanowski, 2003
UT App 357, ¶ 13, 80 P.3d 153 (citation and internal quotation
marks omitted). We review a district court’s findings of fact for
clear error.4 Nicholson v. Nicholson, 2017 UT App 155, ¶ 5, 405

4. Keith raises two additional arguments. The first of these is that
the district court “committed clear error by including gifts
without a finding of extraordinary circumstances and by
including post decree debt on [Holly’s] expenses.” In making
this argument, Keith does not cite the record and, except for one
passing reference to rule 26.1 of the Utah Rules of Civil
Procedure, does not cite any authority, much less undertake any
reasoned analysis. Accordingly, this argument is inadequately
briefed, and we do not consider it. See Utah R. App. P. 24(a)(8);
Bank of America v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196. The
second argument, as far as we can tell, is a challenge to the
district court’s determination that the $150 expense it allowed
Holly to include in calculating her reasonable expenses in the
initial alimony determination was not a new expense for
purposes of calculating Holly’s expenses at the time of
modification. Keith’s argument is difficult to follow. At some
points, he argues it was improper for the district court to allow
the $150 expense in its initial alimony determination. But that
determination is outside the scope of this appeal and is
untimely, and we therefore cannot consider it. See Utah R. App.
P. 4(a). At other points, Keith argues that, in determining Holly’s
(continued…)

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P.3d 749. We conclude that the district court’s findings of fact as
to Holly are inadequate, but we express no opinion as to what an
equitable alimony award might be.

¶18 We first address the district court’s finding as to Holly’s
income. The court found that Holly’s gross income was $2,600
per month and that her net income, excluding the support from
her adult children, was $2,347.76. These figures were determined
by relying on Holly’s January 2015 financial declaration. But the
court failed to explain why it based Holly’s income on the
January 2015 financial declaration rather than the updated
version Holly filed in July 2015, and it failed to justify its income
determination in light of Holly’s 2013 W-2 and 2014 tax return,
both of which established that Holly’s gross income had been
higher than $2,600 per month. For example, in 2013, Holly’s
gross annual income was $33,415.83, an average of $2,784.65 per
month; in 2014, Holly’s gross annual income was $34,409.56, an
average of $2,867.46 per month.

¶19 Second, in calculating Holly’s reasonable expenses, the
district court used the figures from Holly’s January 2015
financial declaration rather than the figures from Holly’s final
updated financial declaration. Because the two declarations were
quite different, see supra ¶ 9, the figure the court reached is
inaccurate.

¶20 Third, the court found that Holly’s “reduced mortgage
expense and the 33% income increase constitutes a substantial
change in material circumstances.” In making this finding, the
court failed to address the foreseeability element in the changed

(…continued)
expenses at the time of modification, the district court
improperly included the attorney fees Holly accrued in litigating
the petition to modify, but he is incorrect. The court in fact
deducted those expenses from its final calculation. Accordingly,
we do not further address this argument.

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circumstances standard. Holly’s satisfaction of the mortgage was
specifically contemplated in the divorce decree and was
otherwise foreseeable, as the court was well aware of the
duration of the mortgage. The court did not explain why Holly’s
incremental increase in income over nearly a decade was
unforeseeable, especially where Keith’s income similarly
increased over that period from $8,370 gross per month to
$11,666 gross per month. Cf. Fish v. Fish, 2016 UT App 125, ¶ 19,
379 P.3d 882 (“We are not aware of any Utah authority requiring
a district court to find that [a substantial material change in
circumstances] has occurred simply because one party’s income
has increased and the divorce decree did not discuss possible
increases in income. Were it otherwise, creeping inflation could
necessitate recalculation of nearly all alimony awards on an
annual or biennial basis.”).

¶21 Finally, we are troubled that the court simultaneously
found that (1) it had “considered the applicable factors for
determining what constitutes a reasonable alimony award” and
(2) Keith’s testimony and financial declarations “[were] not
credible.” Moreover, the court’s findings do not address the
standard of living the parties enjoyed during the marriage. This
court has explained that, when determining the recipient
spouse’s financial condition and needs, it must do so “in light of
the marital standard of living.” Rule v. Rule, 2017 UT App 137,
¶ 15, 402 P.3d 153. Indeed, two major purposes of an alimony
award are “to get the parties as close as possible to the same
standard of living that existed during the marriage” and “to
equalize the standards of living of each party.” Id. ¶ 14 (citation
and internal quotation marks omitted). We also emphasize that
the marital standard of living is not determined by actual
expenses alone. See Howell v. Howell, 806 P.2d 1209, 1212 (Utah
Ct. App. 1991). “The needs of each party, determined according
to the marital standard of living, then provide a baseline from
which to craft an alimony award that best fulfills the purposes of
alimony[.]” Rule, 2017 UT App 137, ¶ 15. And if a court is
persuaded to adjust the amount of alimony, it must provide

20151014-CA 10 2018 UT App 22
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factual support to show that the receiving spouse “will be able to
support [himself or] herself at a standard of living to which [the
spouse] was accustomed during the parties’ marriage, or that the
[payor spouse] is no longer able to pay.” Fullmer v. Fullmer, 761
P.2d 942, 951 (Utah Ct. App. 1988); see also Williamson v.
Williamson, 1999 UT App 219, ¶¶ 8, 11, 983 P.2d 1103 (providing
that the statutory factors that apply to an initial award of
alimony also apply “to a redetermination of alimony during a
modification proceeding” because the “goal of alimony . . . is to
equalize the parties’ standards of living”).

¶22 Because of these errors, “[w]e are unable to trace with
accuracy the steps by which the district court reached its
ultimate conclusion.” See Oldroyd v. Oldroyd, 2017 UT App 45,
¶ 11, 397 P.3d 645. Therefore, the district court’s findings of fact
and support thereof are inadequate. See id.; Mark v. Mark, 2009
UT App 374, ¶ 6, 223 P.3d 476. Accordingly, we vacate the
district court’s ruling reducing Keith’s alimony obligation and
remand for further findings consistent with the appropriate legal
standards set forth in this opinion.

¶23 We conclude the district court did not err in denying
Keith’s motion for summary judgment, but we vacate its ruling
in reducing Keith’s alimony obligation and remand for further
proceedings consistent with this opinion.

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