2024 UT App 157
THE UTAH COURT OF APPEALS
MARI HOIDAL,
Appellee and Cross-appellant,
v.
JOHN BERRY,
Appellant and Cross-appellee.
Opinion
No. 20220291-CA
Filed October 31, 2024
Third District Court, Salt Lake Department
The Honorable Heather Brereton
No. 194900847
Steve S. Christensen and Clinton R. Brimhall,
Attorneys for Appellant and Cross-appellee
Julie J. Nelson, Kayla Quam, and Skylar Walker,
Attorneys for Appellee and Cross-appellant
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JOHN D. LUTHY and AMY J. OLIVER concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 John Berry and Mari Hoidal married and later divorced.
Both parties appeal from the district court’s property division and
alimony award. Berry argues the court abused its discretion by
valuing the marital estate at the time the parties separated, by
crediting Hoidal with the value of phantom stocks that were paid
after the parties separated, and by refusing to consider certain of
Berry’s claimed expenses in the alimony calculation. Hoidal
challenges the court’s alimony calculations, as well as the court’s
failure to require reimbursement of previous childcare expenses
and the denial of her request for attorney fees. We affirm in part,
and we reverse and remand the matter in part.
Hoidal v. Berry
BACKGROUND
¶2 Berry and Hoidal were married in August 2012, and their
only child (Child) was born in May 2018. Hoidal “had various
assets at the time of the marriage.” The parties lived in a home
purchased by Hoidal three years before the marriage, and while
they were married, Hoidal “paid the mortgage and other costs
associated with the home” and “Berry paid for the parties’ car
payments, car insurance, and some of the parties’ joint food
expenses.” The parties did not have joint credit cards, they
maintained separate bank accounts, and they kept their finances
separate. The only exceptions to the practice of separate finances
were those occasions when Hoidal gave money to Berry “to help
him pay credit card and other debts and to pay off one of the cars
driven by the couple during the marriage.”
¶3 Seven months after Child’s birth, the parties got into an
argument at a restaurant, which ended in Berry driving away and
leaving Hoidal and Child stranded at the restaurant. The parties
then separated; Hoidal and Child resided with her parents, while
Berry continued to live in the marital home until a court order
returned possession of the home to Hoidal seven months later.
¶4 Following the separation, Berry began criticizing,
threatening, and harassing Hoidal and others close to her. Berry
went so far as to yell at and spit in the face of Hoidal’s father (Dr.
Hoidal), and he “repeatedly contacted” Hoidal’s employer with
accusations “of kidnapping and addiction and indicating his child
was in danger.” Berry locked Hoidal out of the marital home
while the parties were separated, but Hoidal nonetheless paid the
mortgage and cared for Child; Berry “did not in any way
contribute to the marital estate during separation” and “caused
[Hoidal] unnecessary stress and anxiety.”
¶5 Hoidal filed for divorce in February 2019. She requested
sole physical and legal custody of Child and asked that the district
court allow Berry no parent-time, based on serious concerns about
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his behavior toward Hoidal, her family, and those at her
workplace.
¶6 The district court held a hearing on the matter on May 29,
2019, resulting in the issuance of temporary orders. The court
indicated that it was “very concerned about what appear[ed] to
be significant impairment of [Berry], based upon [a] threat of selfharm, the level of hostility being directed to [Hoidal] and her
family, the lengths he [was] going to in order to disparage her and
her family, and the concerns expressed by the guardian ad litem.”
Based on these concerns, the court awarded Hoidal sole physical
and legal custody of Child and awarded Berry supervised parent-time. The court ordered Berry “to vacate the marital home” and
awarded no alimony at that time to either party but required
Berry to pay child support to Hoidal.
¶7 In July 2019, the district court granted Hoidal a temporary
restraining order against Berry, limiting Berry’s contact with
Hoidal and prohibiting him from contacting her parents and
sister. That same month, the court issued several additional
orders, explicitly noting that “all orders from the May 29, 2019
hearing on this matter remain in full force and effect” unless
specifically modified in the temporary restraining order—and
nothing pertaining to custody, alimony, or child support was
changed therein. After an evidentiary hearing held in September
2019, the court issued additional temporary orders, this time
awarding temporary alimony of $1,574 per month to Berry.
¶8 In April 2020, Berry was charged with five counts of
violating the restraining order based on his continued harassment
of Hoidal and her family, including “emailing fifteen of Dr.
Hoidal’s employers, co-workers and employees at the University
of Utah.” And in July 2020, Berry was criminally charged with one
count of stalking and one count of violating a pre-trial protective
order, based on Dr. Hoidal’s report that Berry “refuse[d] to leave
[them] alone.” Throughout the remainder of that year, Berry
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continued to harass and threaten Hoidal, her family, and her
superiors at work. Because of this continued antagonism, Hoidal’s
superiors at work were so concerned for Hoidal’s safety and
mental health that they contemplated moving her into a
diminished role at work with reduced responsibility.
¶9 In April 2021, the parties entered into a partial stipulation
resolving custody and parent-time, agreeing that a bifurcated
decree of divorce should be entered. The district court entered an
order dissolving the marriage between Berry and Hoidal,
awarding Hoidal sole physical and legal custody of Child subject
to Berry’s parent-time, maintaining a restraining order against
Berry, and reserving all other issues for trial.
¶10 Trial occurred in May and July of 2021, following which the
district court entered Findings of Fact and Conclusions of Law.
The court determined that based on the facts and circumstances
of the case, the marital home “should be valued as of the date of
the parties’ separation in December 2018.” The court’s findings
supporting this valuation date centered on Hoidal’s continued
contributions after separation—including paying “all costs”
associated with the home, continuing “to work and advance in
her company,” and performing “all childcare responsibilities both
financially and emotionally”—and Berry’s corresponding failure
to contribute—including failing to “bring income into the marital
estate” or “pay any marital expenses,” failing to share in any
childcare obligations or expenses,” and taking “unreasonable and
concerning” actions toward Hoidal that caused her “unnecessary
stress, anxiety, and fear” and “negatively affected her
employment.”
¶11 As part of the court’s consideration of several financial
accounts, it addressed a specific investment account belonging to
Hoidal that had been “funded with monies received in phantom
stock.” The court found that this account was “created after the
date of separation with compensation earned after the date of
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separation” and therefore concluded that Berry had “no interest
in this account.”
¶12 In relation to Child, Berry was ordered to reimburse Hoidal
nearly $17,000 for half of the work-related childcare expenses
incurred prior to trial, as well as to pay half of all such expenses
going forward. The court also calculated Berry’s monthly child
support obligation to be $348.
¶13 The court awarded alimony to Berry, who was
unemployed at the time of trial and whose “sources of income
consisted of unemployment benefits and [temporary] alimony.”
As part of the alimony determination, the court considered
Berry’s financial declaration and testimony at trial. The court
accepted most of Berry’s declared expenses, notwithstanding the
fact that some of the listed expenses, such as utilities and health
insurance expenses, were expenses that he was not currently
paying and despite the fact that he “did not support any of his
expenses with supporting documentation other than his rent
payment.” However, the court refused to consider Berry’s child
support obligation, attorney fees, and student loan payments
because these were “not marital expenses.” The court also
adjusted some listed expenses downward but actually increased
Berry’s childcare expense. This all resulted in a total monthly
alimony award of $1,707, to continue for “an additional 44
months.”
¶14 As to attorney fees, the district court found that “Berry’s
actions during the pendency of this matter have resulted in some
of [Hoidal’s] attorney fees.” But the court also determined that
“Berry does not have the financial ability to pay [Hoidal’s] fees.”
“After consideration of the facts presented and balancing equities
in this matter,” the court ordered that each party “pay their own
attorney fees.”
¶15 Ultimately, Berry was awarded nearly $195,000 to account
for his share of the equity in the home, his half of two financial
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accounts deemed to be marital property, and half of Hoidal’s
401(k)—each of these assets being valued at the time of the parties’
separation. The remaining financial accounts were awarded to
Hoidal.
¶16 After the entry of the district court’s order, Berry filed a
motion requesting additional or amended findings and an
amended judgment. Berry raised issues relating to, among other
things, the court’s decision to value assets as of the date of
separation, the court’s refusal to consider certain of his expenses
in the alimony calculation, and the court’s order that he reimburse
Hoidal for childcare expenses incurred during the parties’
separation.
¶17 In response, the district court issued a ruling modifying its
prior order. The amended order did not change the previous asset
valuation date or alimony calculation. But the court was
persuaded that Berry should not be ordered to reimburse Hoidal
for past childcare expenses, reasoning that the court had
“specifically removed any expense for childcare in calculating the
amount of the temporary alimony award” and concluding that
“reimbursement for these past expenses is not equitable given the
Court’s prior ruling and the respective finances of the parties.”
¶18 Berry thereafter appealed to this court, challenging several
aspects of the district court’s rulings. And Hoidal responded by
raising several issues in a cross-appeal.
ISSUES AND STANDARDS OF REVIEW
¶19 Berry appeals three of the district court’s actions: (1) the
court’s determination that both the marital home and Hoidal’s
401(k) should be valued as of the time of separation instead of the
time of trial, (2) the court’s decision that Hoidal’s investment
account containing payments from her phantom stock was her
separate property, and (3) the court’s refusal to include Berry’s
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child support and student loan obligations when calculating his
alimony award.
¶20 Hoidal cross-appeals, challenging the following actions of
the district court: (1) the court’s consideration of several of Berry’s
asserted expenses that she argues were not sufficiently supported
by the evidence, (2) the court’s decision to not require Berry to
reimburse her for childcare expenses that occurred during the
parties’ separation, and (3) the court’s denial of her request for
attorney fees.
¶21 “In divorce actions, a district 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). “Accordingly, 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 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.”
Id. (quotation simplified). And “because we can properly find
abuse only if no reasonable person would take the view adopted
by the [district] court, appellants have a heavy burden to show
that an alleged error falls into any of these three categories.”
Id.
(quotation simplified).
ANALYSIS
I. Berry’s Appeal
A. Date of Valuation
¶22 Berry first challenges the district court’s decision to value
the marital home and Hoidal’s retirement account as of the date
of separation and not as of the date of trial. As a general rule, “the
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marital estate is valued at the time of the divorce decree or trial.”
Shepherd v. Shepherd, 876 P.2d 429, 432 (Utah Ct. App. 1994). But
“a [district] court has broad discretion to use a different date, such
as the date of separation, when circumstances warrant.”
Id. at 432–
33. “However, if the [district] court uses a date other than the date
of the divorce decree, it must support its decision with sufficiently
detailed findings of fact explaining its deviation from the general
rule.”
Id. at 433.
¶23 Berry argues that the situations in which a district court
may apply an alternate date of valuation, such as the date of
separation, “are limited” to the three situations specifically
enumerated by this court in Peck v. Peck,
738 P.2d 1050 (Utah Ct.
App. 1987). For various reasons, we disagree.
¶24 In Peck, this court remanded a matter for the district court
to make “findings on the specific values of the assets” divided
among the divorcing parties.
Id. at 1051. One of those assets was
a family business that had earned between $750,000 and
$1,000,000 the year prior to separation, but those earnings had
then fallen, resulting in the business having a negative net worth
of $50,400 by the time of trial, with the controlling party having
“closed all the corporate accounts and thereafter ceased all record
keeping” shortly after the parties had separated.
Id. As part of the
remand decision, this court provided some limited instruction to
guide the district court in its required asset valuation.
Id. at 1052.
This court acknowledged the general rule that “[a]ssets are
usually valued at the time of the divorce decree” but then
instructed, “However, where one party has dissipated an asset,
hidden its value, or otherwise acted obstructively, the [district]
court may, under its broad discretion, value the property at an
earlier date, i.e., separation.”
Id. This court then recognized that
“the [district] court might therefore value [this family business] as
of the time the parties separated.”
Id.
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¶25 Berry seizes on the enumerated list from Peck—i.e., “where
one party has dissipated an asset, hidden its value, or otherwise
acted obstructively,” id.—to argue that a district court is allowed
to value assets at a time different from the date of trial or entry of
the divorce decree only when one or more of these three specific
situations are present. But such an interpretation is far too narrow.
¶26 First, there is no such limiting language in the Peck case
itself. The language in the opinion simply provides that when any
of these three situations are present, it would be appropriate for
the district court to exercise its discretion and value property at
an earlier date than would normally be utilized. See id. But there
is no language in Peck stating that an earlier valuation date would
be appropriate only when one of these three enumerated
situations is present. See
id.
¶27 Berry cites in support of his argument several additional
cases that have applied an earlier valuation date when the
circumstances of those cases met one or more of the three
situations specifically enumerated in Peck. But Berry points us to
no language from those cases that would suggest that an earlier
valuation date can be set only when one or more of the three Peck
situations are present. Instead, these cases essentially reiterate the
same language contained in Peck, providing for a different
valuation date when these situations occur, not only when they
occur. See, e.g., Goggin v. Goggin,
2013 UT 16, ¶ 49,
299 P.3d 1079
(“Where one party has dissipated an asset, hidden its value or
otherwise acted obstructively, the [district] court may, in the
exercise of its equitable powers, value a marital asset at some time
other than the time the decree is entered, such as at separation
. . . .” (quotation simplified)).
¶28 Second, there are several other appellate decisions that
have been issued since Peck that state the rule for using an earlier
valuation date with broader language, which would suggest that
the discretion to choose an earlier valuation date is not as limited
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as Berry argues. See, e.g., Petrzelka v. Goodwin, 2020 UT App 34,
¶ 47,
461 P.3d 1134 (“While a court should generally value the
marital estate at the time of the divorce decree or trial, a court has
broad discretion to value the parties’ marital assets at a different
time, such as that of separation, if it determines that the
circumstances so warrant.” (emphasis added) (quotation
simplified)); Shepherd v. Shepherd,
876 P.2d 429, 432–33 (Utah Ct.
App. 1994) (“[I]n the exercise of its equitable powers, a trial court
has broad discretion to use a different date, such as the date of
separation, when circumstances warrant.” (emphasis added)).
¶29 Third, and importantly, other appellate decisions have
allowed for earlier valuation dates based on other factors. See, e.g.,
Jacobsen v. Jacobsen,
2011 UT App 161, ¶ 39,
257 P.3d 478 (“The
[district] court clearly explained its rationale for not using the 2007
values and, thus, did not abuse its discretion. The [district] court’s
findings explain that the only evidence to support the value of the
various personal property items—a washer, a dryer, a television,
and a dining room set—was the purchase price. Neither party
presented evidence supporting the 2007 values.”), cert. denied,
263
P.3d 390 (Utah 2011).
¶30 One particularly relevant example is this court’s decision
in Donnelly v. Donnelly,
2013 UT App 84,
301 P.3d 6, cert. denied,
312 P.3d 619 (Utah 2013). There, the court reviewed the district
court’s decision to value a husband’s retirement account as of the
date of separation rather than at the time of the trial five years
later when the account’s value had increased significantly.
Id.
¶¶ 42–43. The district court based its decision on “a combination
of factors” that included the wife’s “failure to contribute to the
account’s increase in value during the parties’ separation,” the
wife’s “failure to contribute to [the husband’s] ability to work
during the separation,” the “extraordinarily long” separation
length of five years, and “the hostilities between the parties and
[the wife’s] actions during the separation.” Id. ¶ 43. The Donnelly
court determined that “the district court gave sound reasons for
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its decision” and that the wife had “failed to persuade” the court
that this decision was “not adequately supported and explained”;
the court therefore affirmed the district court’s decision to apply
the earlier date under these circumstances. Id. ¶ 47.
¶31 Berry admits that the Donnelly court outlined several
factors that “resonate with this case,” but he argues that Donnelly
“is not applicable precedent” because the decision “hinges on
inadequate briefing.” But this is a mischaracterization of the case.
Although the court did state that the wife had “fail[ed] to
acknowledge on appeal” several factors that the district court
relied on in making its valuation decision, this was in the context
of explaining the wife’s failure to carry her burden of persuasion;
the court did not decline to reach the merits of the issue due to
inadequate briefing. Id. ¶¶ 46–47. Berry further argues that
because the district court in Donnelly made general reference to
“all of the circumstances of this case,” id. ¶ 43 (quotation
simplified), as supporting its decision, those unspecified factors
may have included one of the situations specifically enumerated
in Peck. But it is unreasonable to think that, were the situations
enumerated in Peck as limiting as Berry argues, the court could
have determined in Donnelly that “[t]he district court gave sound
reasons for its decision” while completely failing to make any
mention of the crucial Peck-satisfying situation on which the
court’s analysis must have hinged. Id. ¶ 47. Nor are we convinced
by Berry’s argument that the wife in Donnelly was apparently
“wasting money” and that this satisfied the Peck situations
involving dissipation or obstruction—mainly because the Peck
situations speak to dissipation or obstruction regarding the asset
being valued and not just to a dissipation of the marital estate in
general or obstructive behavior unrelated to the valuation of the
particular asset, Peck v. Peck, 738 P.2d 1050, 1052 (Utah Ct. App.
1987). And there is no suggestion in Donnelly that the wife ever
dissipated the retirement account or displayed obstructive
behavior related to that account.
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¶32 Fourth, our broader interpretation of when the district
court may depart from the default valuation date is more in line
with the considerable discretion district courts have to divide
property, as well as the overarching equitable considerations that
should guide that division. “The appropriate distribution of
property varies from case to case, and the overriding
consideration is that the ultimate division be equitable—that
property be fairly divided between the parties, given their
contributions during the marriage and their circumstances at the
time of the divorce.” Goggin v. Goggin, 2013 UT 16, ¶ 48,
299 P.3d
1079 (quotation simplified).
¶33 Thus, based on these various considerations, we remain
unconvinced that Peck created a rule providing that the district
court may exercise its discretion to apply a different date of
valuation in only three specific situations. And therefore, the
district court did not misapply the law in considering
circumstances beyond those listed in Peck in arriving at its
valuation determination. Furthermore, because we determine
that this broader interpretation is more in harmony with the
equitable principles that guide a district court’s property division,
we decline Berry’s invitation to overrule Donnelly or other related
cases that have applied this less limited approach.
¶34 Berry additionally argues that the district court’s valuation
decision was “without adequate supporting findings.” This
argument is primarily related to his main argument that we have
rejected, that is, he argues the findings were not adequate because
they did not establish one of the three situations enumerated in
Peck. However, Berry also argues that even if this court disagrees
with his narrow interpretation of Peck, “the district court’s
findings do not support valuing the marital estate as of an
alternate date.” We reject this argument because the district
court’s findings supporting an earlier valuation date are
numerous, clear, and in harmony with equitable principles. These
findings included that “Hoidal continued to pay all mortgage
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payments and other costs associated with the . . . home during the
parties’ separation,” that “Hoidal performed all childcare
responsibilities both financially and emotionally with no help or
support from [Berry] during the parties’ separation,” that “Berry
did not bring income into the marital estate during separation and
did not pay any marital expenses,” that “Berry did nothing to
contribute to [Hoidal’s] ability to work and support [Child],” that
“Hoidal continued to work and advance in her company during
the partes’ separation despite [Berry’s] actions which negatively
affected her employment,” that “Berry neither contributed to the
marital estate financially nor emotionally during the parties’
separation,” that Berry “did nothing to contribute to the
accumulation of any retirement funds or to increase the value of”
the home, that “the parties were at odds with one another during”
their separation, and that Berry’s actions during separation were
“unreasonable and concerning.” And such findings—many of
which are similar to those relied upon in the Donnelly case—more
than adequately support the court’s decision to use an earlier
valuation date.
¶35 Berry pushes back, taking issue with the court’s findings
that touched on his disturbing conduct toward Hoidal, her family,
and her superiors at work, arguing that “asset division is not to
be used as a punishment tool.” We agree that “there is no place
for contempt sanctions in an equitable distribution of marital
property” and that a district court “does not have discretion to
distribute marital property in a way that is designed to punish a
party’s contemptuous behavior.” Goggin, 2013 UT 16, ¶ 52.
However, we are not convinced that the court’s various references
here to Berry’s troubling behavior signified that the court was
using the property division as any sort of sanction. Instead, our
understanding is that the court was explaining that Berry was not
only failing to contribute in any manner to the marital estate
during separation, but he was actively taking serious and extreme
actions that were negatively affecting the value of the marital
estate during this period. And such a consideration is a valid one
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in assessing the contributions the parties each made to the marital
estate after separation and in assessing what valuation date is
most equitable.
¶36 Finally, Berry raises a “commingling” argument, asserting
that his portion of the post-separation appreciation on the home
and Hoidal’s 401(k) was commingled with Hoidal’s post-separation contributions, rendering the whole amount marital
property. He asserts that “it is fundamentally inequitable” for a
court to value appreciating property as of the date of separation
because “the spouse holding the property realizes and keeps
appreciation on both halves of the asset and needs only pay the
other spouse that spouse’s pre-appreciation share.” But the case
Berry cites in support of this argument addresses when
“[p]remarital property loses its separate identity and becomes a
part of the marital estate,” and the case makes no mention of
commingling related to post-separation property. Oliekan v.
Oliekan, 2006 UT App 405, ¶ 20,
147 P.3d 464 (emphasis added).
Moreover, the equitable goals of property division are precisely
the reason for this exception allowing a district court to depart
from the default valuation date when such would be the more
equitable result. See Shepherd v. Shepherd,
876 P.2d 429, 432–33
(Utah Ct. App. 1994) (“[I]n the exercise of its equitable powers, a
[district] court has broad discretion to use a different date, such as
the date of separation, when circumstances warrant.” (emphasis
added)). And, indeed, in the circumstances here, we can
understand how the district court believed that the earlier
valuation date would be the more equitable choice, admittedly
giving Hoidal the benefit of the appreciation on assets to which
she was still actively contributing, yet preventing—as would have
happened with applying the default valuation date—a windfall to
Berry of half of Hoidal’s post-separation contributions and their
appreciation even though he “contributed to the marital estate
[neither] financially nor emotionally during the parties’
separation.”
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¶37 In sum, we see no misapplication of the law or serious
inequity that would indicate an abuse of the district court’s
discretion under the circumstances of this case.
B. Phantom Stocks
¶38 The district court determined that an investment account
funded with certain phantom stock payments from Hoidal’s
employment was “created after the date of separation with
compensation earned after the date of separation” and that,
therefore, “Berry has no interest in this account.” Berry challenges
this award, arguing that “the fact that the stocks were liquidated
after separation does not make them separate property if they
were originally marital property.” But Berry’s framing seems to
mistake the nature of the asset in question.
¶39 Phantom stocks “essentially are bonus plans that grant not
stock but rather the right to receive an award based on the value
of the company’s stock.” Stock Options, Restricted Stock, Phantom
Stock, Stock Appreciation Rights (SARs), and Employee Stock Purchase
Plans (ESPPs), Nat’l Ctr. for Emp. Ownership,
https://www.nceo.org/articles/stock-options-restricted-phantomsars-espps [https://perma.cc/3YEB-U3J9]. They “provide[] a cash
or stock bonus based on the value of a stated number of shares, to
be paid out at the end of a specified period of time.” Id.
¶40 Thus, Hoidal did not, as Berry suggests, own stock prior to
separation that was liquidated sometime after separation. Instead,
Hoidal had the right to earn a cash bonus from her employer for
remaining at her job for a period of three years. Her employer
paid her that cash bonus in May 2020 for meeting the three-year
requirement. Berry points us to no law suggesting that it is an
abuse of the district court’s discretion to consider such a bonus to
be “earned” at the completion of the three years of employment—
when the condition precedent for the bonus was finally satisfied.
Furthermore, we particularly see the logic of such an application
in the circumstances before us, where Berry ultimately worked
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against Hoidal satisfying the condition precedent for the bonus by,
as the court found, “negatively affect[ing] her employment” after
the parties separated.
¶41 Thus, we see no abuse of discretion in the court’s
determination to consider the phantom stock payment as Hoidal’s
separate property where the condition precedent for the phantom
stock bonus was not completed until after the date of separation
and where Berry’s actions actually worked against Hoidal’s
ability to meet that condition.
C. The Alimony Calculation
¶42 Finally, Berry argues that the district court abused its
discretion in refusing to include his child support and student
loan obligations when calculating the alimony award. We address
each expense in turn.
1. Berry’s Child Support Obligation
¶43 Berry argues that his “child support payment should be
factored into the alimony calculation as either one of his
reasonable expenses or a deduction from his income.” We agree
that failure to do so was an abuse of the district court’s discretion.
¶44 There is an “established process to be followed by courts
considering an award of alimony.” Fox v. Fox, 2022 UT App 88,
¶ 20,
515 P.3d 481 (quotation simplified), cert. denied,
525 P.3d 1263
(Utah 2022); see also Rule v. Rule,
2017 UT App 137, ¶ 19,
402 P.3d
153. First, a court must “assess the needs of the parties, in light of
their marital standard of living.” Fox,
2022 UT App 88, ¶ 20
(quotation simplified). Second, a court “must determine the extent
to which the receiving spouse is able to meet his or her own needs
with his or her own income.”
Id. (quotation simplified). Then,
“only if the court determines that the recipient spouse cannot
meet his or her own needs, the final step in the process is for the
court to assess whether the payor spouse’s income, after meeting
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his or her needs, is sufficient to make up some or all of the shortfall
between the receiving spouse’s needs and income.” Id. (quotation
simplified).
¶45 Under the second step of this process, the district court was
required to consider whether Berry had sufficient income to meet
his own needs. The child support obligation of $348 is an amount
Berry is required to pay each month, and the money that he
expends for this will be unavailable to meet his other needs. Thus,
the district court’s failure to consider the child support obligation
as impacting this calculation does not follow the established
process. Cf. Andrus v. Andrus,
2007 UT App 291, ¶ 19,
169 P.3d 754
(“A correct calculation of his [or her] disposable income is an
important step in determining [a spouse’s] ability to pay . . . .”).
¶46 Hoidal responds by arguing that the child support amount
was included in the district court’s calculations because the court
increased Berry’s childcare expense by $250 from the childcare
expense he listed on his financial declaration. She claims that this
$250 increase is only a “minimal[] reduc[tion]” from the $348 child
support payment amount, and she argues that this small
reduction and reclassification was within the district court’s
broad discretion.
¶47 But there is nothing in the district court’s reasoning that
suggests that this was the logic behind the court’s determination.
Although the court did increase Berry’s childcare expense by $250
(from $750 to $1,000), there is nothing in the record to indicate that
this was an attempt to include the child support payments within
the childcare category. Instead, it appears that this adjustment
resulted from a realization that Berry’s separate responsibility to
pay his share of the childcare costs would be an amount larger
than the $750 estimate on his financial declaration. And indeed,
this is consistent with the documentation before the court
showing the monthly daycare costs alone were well above the
$1,500 that would be available by each party paying $750 in
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Hoidal v. Berry
childcare costs. Furthermore, the court was explicit that it did not
consider child support to be a marital expense and that it arrived
at its calculation of Berry’s reasonable monthly expenses “by
removing child support,” as opposed to decreasing and
recategorizing it. (Emphasis added.)
¶48 Thus, because Berry will be required to pay approximately
$1,000 per month for his half of work-related childcare expenses
in addition to the $348 child support payment, failure to consider
both as impacting his financial need and resources was an abuse
of the district court’s discretion. We therefore reverse and remand
this matter for the entry of an alimony payment $348 greater than
that previously ordered. 1
2. Berry’s Student Loans
¶49 In his financial declaration presented to the district court,
Berry included an expense of $750 per month for a student loan
payment. The district court refused to include this amount in the
calculation of Berry’s expenses, finding, “Berry did not pay his
student loan during the marriage and does not pay this expense
currently.” We see no abuse of discretion in the court’s
determination.
¶50 Berry argues that even if his student loan payments were
deferred during the marriage, they should still count as an
1. Because there can be no dispute about the amount of the child
support obligation—the district court’s order having set the
amount at $348—we need not remand this issue for the court to
make a factual finding as to the amount. Furthermore, because the
district court previously determined that Hoidal’s income
“exceeds her current expenses” by over $4,000 and that she “had
the ability to pay alimony” to cover Berry’s shortage of $1,707 in
meeting his expenses, it is clear Hoidal would have the ability to
pay alimony even when Berry’s shortage increases slightly by the
child support amount of $348.
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Hoidal v. Berry
expense because they are “still a legal obligation which the
government is owed and which [Berry] was legally obligated to
pay on a monthly basis during the marriage.” While the
obligation to pay the loan amount at some future point may have
existed during the marriage, because those loans were deferred,
there was no obligation to make monthly payments during the
marriage and the marital standard of living did not include
making these payments. Furthermore, Berry does not directly
address the finding that he is currently not making student loan
payments, nor does he suggest that the commencement of such
payments is set to occur at any point in the near future. It would
hardly be appropriate for the district court to award alimony to
cover payments that the parties never paid during their marriage
and that Berry is not paying now, that is, amounts that reflect
neither the marital standard of living nor Berry’s current need. We
therefore affirm the district court’s refusal to consider student
loan payments in the calculation of Berry’s expenses.
II. Hoidal’s Cross-appeal
A. Berry’s Expenses
¶51 Hoidal raises challenges related to several other of Berry’s
expenses, arguing that he failed to provide sufficient support for
various asserted expenses, that some of the expenses were costs
he was not currently paying, and that some of them were not part
of the marital standard of living.
¶52 As to her sufficiency-of-the-evidence challenge, Hoidal
points to the district court’s finding that “Berry did not support
any of his expenses with supporting documentation other than his
rental payment.” But notwithstanding the lack of documentary
evidence demonstrating Berry’s expenses, there was evidence of
each of Berry’s expenses presented to the court in the form of his
financial declaration (made under penalty of law) as well as his
(albeit sometimes brief) testimony at trial regarding these
expenses. And, after considering this evidence, the court
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Hoidal v. Berry
explained precisely how it arrived at Berry’s monthly expense
amount, specifically listing which expenses the court increased or
decreased in the calculation and which expenses were not
included at all, and then stating that “the remaining expenses
[were] consistent with the parties’ standard of living at the time
of separation” and that the resulting expenses were “reasonable
monthly expenses.” See Eberhard v. Eberhard, 2019 UT App 114,
¶ 36,
449 P.3d 202 (“A district court may not merely restate the
recipient spouse’s testimony regarding [his or] her monthly
expenses; instead, the court must state that the calculation of
monthly expenses is reasonable and must explain how it arrived
at the monthly amount, or at least from the record, allow us to
make this determination ourselves.” (quotation simplified)).
Thus, there was sufficient supporting evidence underlying the
district court’s factual findings regarding expenses, and those
findings are not clearly erroneous. Rothwell v. Rothwell,
2023 UT
App 50, ¶ 81,
531 P.3d 225 (determining that one party’s estimate
on an expense “could support the court’s imputation of this
expense, even in the absence of further documentation” and even
where the estimate was “contrary to [the expert’s] estimate”), cert.
denied,
537 P.3d 1011 (Utah 2023).
¶53 As to the fact that some expenses included in the
calculation of Berry’s need were not expenses that he was
currently paying, we recognize that this does not always prohibit
a district court from considering such expenses as reasonable
expenses. As this court has previously recognized, “In many
cases, the level of expenses and the standard of living of the
separated parties at the time of trial will not be representative of
the parties’ customary or proper status or circumstances” 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.” Rule v. Rule,
2017 UT
App 137, ¶ 16,
402 P.3d 153 (quotation simplified). “We have
therefore cautioned against determining alimony based upon
actual expenses at the time of trial . . . .”
Id. Thus, even when a
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Hoidal v. Berry
party cannot currently afford and therefore does not currently pay
for expenses that were previously covered by the marital standard
of living, they may still be counted as reasonable expenses to
consider in an alimony calculation. Accordingly, current
nonpayment alone is insufficient to indicate an abuse of discretion
on the part of the district court in including these expenses in the
alimony calculation.
¶54 As to Hoidal’s assertion that some of Berry’s expenses were
not part of the marital standard of living, this seems to be solely
with reference to post-separation debt incurred by Berry. Hoidal
argues that “it was not part of the marital standard of living to
incur debts to meet the parties’ needs.” But even still, we do not
see that it would be an abuse of the district court’s discretion to
include debt payments in the calculation of Berry’s needs if the
court determines that such debt was created by the recent inability
of Berry’s income to cover his reasonable expenses. And here,
where the district court first reduced the debt expense by nearly
half and then stated that “the remaining expenses are consistent
with the parties’ standard of living at the time of separation,” it
seems clear that the district court was following the appropriate
procedure of looking at the marital standard of living and
including in its calculations only that portion of the debt that it
found to be reflective of that standard of living.
¶55 Thus, the district court’s findings had sufficient support,
and the court appropriately applied the relevant law. We
therefore see no abuse of discretion in the district court’s
treatment of the various expenditures that Hoidal challenges on
appeal.
B. Childcare Reimbursement
¶56 Hoidal argues that the district court abused its discretion
in reversing its order requiring Berry to reimburse her for
childcare expenses incurred between separation and trial. She
argues that Berry has a statutory duty to share in work-related
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Hoidal v. Berry
childcare expenses, see Utah Code § 81-6-209(1), and that courts
are not permitted “to release parents from this duty for equitable
reasons such as inability to pay.” We are unconvinced that this is
an accurate representation of the logic underlying the district
court’s decision.
¶57 The district court initially ordered that Berry reimburse
Hoidal for work-related childcare expenses that were incurred
during the parties’ separation. Berry thereafter challenged this
order in his motion for an amended judgment, pointing out that
the court had “made [him] retroactively responsible for childcare
expenses without his temporary alimony award being also
retroactively adjusted to account for the childcare expenses” and
requesting that the court “adjust its money award to either
retroactively adjust alimony or cancel the retroactive adjustment
of childcare expenses.”
¶58 The district court apparently agreed with Berry that if it
was going to order the reimbursement of these childcare costs, it
would be equitable to also consider how those costs would have
impacted the temporary alimony being paid to Berry during that
same period. And the court apparently recognized that if it had
considered these childcare costs, Berry’s alimony award would
have been higher to cover those expenses and, thus, the
retroactive payment of childcare would effectively be offset by a
retroactive alimony award. The court explained as follows:
Considering equitable principles, the Court declines
to make an award for reimbursement of work
related childcare expenses incurred by [Hoidal]
after the parties separated. During the parties’
separation, [Berry] was unable to meet his financial
needs and was in need of financial support from
[Hoidal]. The Court entered a temporary alimony
award and specifically removed any expense for
childcare in calculating the amount of the
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Hoidal v. Berry
temporary alimony award. The Court concludes
that reimbursement for these past expenses is not
equitable given the Court’s prior ruling and the
respective finances of the parties.
¶59 When considered in context, we do not see that the district
court was asserting that Berry need not retroactively pay childcare
costs because he was having a difficult time with his finances.
Instead, the court recognized Berry’s obligation to pay but also
realized, given the respective financial circumstances of the
parties, that considering childcare costs would ultimately work to
increase Berry’s alimony award by an identical amount—
amounting to an offset to Berry. And considering the broad
discretion the district court has in such matters, we cannot say that
the court abused its discretion in so reasoning in this matter and
in choosing to forgo ordering the offsetting awards to each party
that would flow from the child support award and resulting
concurrent alimony award.
C. Attorney Fees
¶60 Hoidal requested attorney fees under Utah Code section
78B-5-825, which provides the general rule that “[i]n civil actions,
the court shall award reasonable attorney fees to a prevailing
party if the court determines that the action or defense to the
action was without merit and not brought or asserted in good
faith.” Utah Code § 78B-5-825(1). This section also provides,
however, that a court may, in its discretion, award no attorney
fees if “the court enters in the record the reason for not awarding
fees.” Id. § 78B-5-825(2). The district court found, “Berry’s actions
during the pendency of this matter have resulted in some of
[Hoidal’s] attorney fees,” but then, “[a]fter consideration of the
facts presented and balancing equities” and after determining that
“Berry does not have the financial ability to pay [Hoidal’s] fees,”
the court declined to award Hoidal attorney fees. Hoidal argues
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Hoidal v. Berry
that this finding was clearly erroneous considering Berry’s
“substantial property award.”
¶61 Hoidal asserts that, as an initial matter, she is the prevailing
party and that the district court “impliedly determined that
[Berry’s] actions during the pendency of this matter were without
merit and not brought in good faith.” Even assuming we agree
with that assertion—the truth of which seems uncertain at best—
we are nonetheless unconvinced that the court’s finding as to
Berry’s ability to pay was clearly erroneous.
¶62 The district court entered an alimony award in favor of
Berry, therein determining that his reasonable expenses
“exceeded his imputed income” by $1,707. And notwithstanding
that he received a property award of nearly $195,000, he, as
Hoidal recognized, claimed over $233,000 in debts “and testified
as to their details.” In the face of this evidence, and even with the
property award, we cannot say that the court’s finding that Berry
does not have the ability to pay Hoidal’s attorney fees was clearly
erroneous. 2
CONCLUSION
¶63 As to Berry’s appeal, we determine that the district court
did not abuse its considerable discretion in choosing to value the
home and Hoidal’s 401(k) as of the date of separation. Nor did the
court abuse its discretion in determining the phantom stock
payment to be Hoidal’s separate property or in refusing to include
Berry’s student loan among his reasonable expenses. We thus
affirm on these issues. However, the court did abuse its discretion
2. Berry requests an award of attorney fees because, he asserts, all
of Hoidal’s cross-appeal arguments “are unpreserved,
inadequately briefed, or fail to grapple with the basis of the
district court’s decision below.” We do not agree with this
characterization of Hoidal’s cross-appeal claims, and we decline
to award attorney fees to Berry.
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Hoidal v. Berry
in failing to account for the child support payment in the alimony
calculation, and we reverse and remand this matter for the court
to increase the alimony payment by that amount.
¶64 As to Hoidal’s cross-appeal, we see no abuse of the district
court’s discretion in its treatment of Berry’s asserted expenses, in
its reconsideration of the reimbursement of past childcare
expenses, or in its refusal to award attorney fees. We therefore
affirm these aspects of the court’s ruling.
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