Nicholson v. Nicholson

2017 UT App 155

THE UTAH COURT OF APPEALS

RONALD J. NICHOLSON,
Appellant,
v.
PAULA ANN NICHOLSON,
Appellee.

Opinion
No. 20151021-CA
Filed August 24, 2017

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 034900408

Samuel M. Barker and Jeffrey A. Callister, Attorneys
for Appellant
Jennifer Neeley, Attorney for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.

CHRISTIANSEN, Judge:

¶1 Ronald J. Nicholson appeals the district court’s
termination of alimony he had been receiving from his ex-wife
Paula Ann Thomas, formerly known as Paula Ann Nicholson.
The district court determined that modification of alimony was
warranted by Thomas’s retirement and that termination of
alimony was proper because Nicholson’s monthly income
exceeded his reasonable monthly needs. We conclude that the
court adequately considered the factors required by statute and
therefore affirm.
 Nicholson v. Nicholson

BACKGROUND

¶2 Nicholson and Thomas married in 1975, separated in
1999, and filed for divorce in 2003. After Nicholson and Thomas
stipulated to a settlement, a decree of divorce was entered in
2008, with retroactive effect to 2007. Under that settlement,
Nicholson received one parcel of real property, the proceeds
from the sale of a second parcel of real property, and three
vehicles; Thomas in turn received one parcel of real property
subject to a mortgage and three other vehicles. Thomas also
agreed to pay $850 per month in alimony to Nicholson for a
period equal to the length of the marriage—32 years. The parties
agreed that “alimony will be terminated upon [Nicholson’s]
remarriage or cohabitation, or otherwise terminated or modified
upon a material change of circumstances, including without
limitation the parties’ retirement[.]” The stipulation was
incorporated into the decree of divorce.

¶3 Upon her retirement in 2014, Thomas sought modification
or termination of her alimony obligation. After a two-day
hearing, the district court ruled that modification of the divorce
decree was appropriate, found that Nicholson’s expenses did not
exceed his income, and modified the divorce decree to eliminate
the alimony obligation. Nicholson timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶4 Nicholson first contends that the district court erred by
failing to make or enter adequate findings regarding Thomas’s
ability to pay alimony. Where an appellant asserts that the
district court’s findings are legally inadequate to support its
ruling, we review for correctness. See Fish v. Fish, 2016 UT App
125, ¶ 5, 379 P.3d 882; Robinson v. Robinson, 2010 UT App 96, ¶ 7,
232 P.3d 1081.

¶5 Nicholson further contends that the district court erred
“in terminating alimony based on [his] current needs and ability

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 Nicholson v. Nicholson

to provide for those current needs when [his] needs and ability
to provide have not changed since the time of the divorce.”
Insofar as this is a challenge to the district court’s findings of
fact, we review for clear error; where the district court’s ruling
relies on its interpretation of the law, we review for correctness.
See Olsen v. Olsen, 2007 UT App 296, ¶ 7, 169 P.3d 765.

ANALYSIS

¶6 The primary purpose of an alimony award, at least an
initial one, is to “enable the receiving spouse to maintain as
nearly as possible the standard of living enjoyed during the
marriage and to prevent the spouse from becoming a public
charge.” Paffel v. Paffel, 732 P.2d 96, 100 (Utah 1986); accord
Connell v. Connell, 2010 UT App 139, ¶ 9, 233 P.3d 836. To achieve
this end, the Utah Code requires a court to consider several
factors when calculating the appropriate amount of alimony to
award:

The court shall consider at least the following
factors in determining alimony:

(i) the financial condition and needs of the
recipient spouse;

(ii) the recipient’s earning capacity or ability
to produce income;

(iii) the ability of the payor spouse to
provide support;

(iv) the length of the marriage;

(v) whether the recipient spouse has custody
of minor children requiring support;

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 Nicholson v. Nicholson

(vi) whether the recipient spouse worked in
a business owned or operated by the payor
spouse; and

(vii) whether the recipient spouse directly
contributed to any increase in the payor
spouse’s skill by paying for education
received by the payor spouse or enabling
the payor spouse to attend school during the
marriage.

Utah Code Ann. § 30-3-5(8)(a) (LexisNexis 2013).1

¶7 After entering an alimony award, the district court retains
“continuing jurisdiction to make substantive changes and new
orders regarding alimony” when it finds that there has been “a
substantial material change in circumstances not foreseeable at
the time of the divorce.” Id. § 30-3-5(8)(i)(i); accord Williamson v.
Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103. “Once that
finding has been made, the court must then consider at least the
following factors in determining [a new alimony award]: (i) the
financial condition and needs of the recipient spouse; (ii) the
recipient’s earning capacity or ability to produce income; (iii) the
ability of the payor spouse to provide support; and (iv) the
length of the marriage.” Williamson, 1999 UT App 219, ¶ 8
(citation and internal quotation marks omitted). “These factors
apply not only to an initial award of alimony, but also to a
redetermination of alimony during a modification proceeding.”
Id.

¶8 In short, once a court has determined that modification is
appropriate pursuant to section 30-3-5(8)(i)(i), it must then

1. This statute has since been amended in a manner that does not
affect our analysis of the issues on appeal.

20151021-CA 4 2017 UT App 155
 Nicholson v. Nicholson

consider at least the factors set forth in section 30-3-5(8)(a).2 See,
e.g., Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748
(explaining that the substantial-change-of-circumstances
determination is a threshold step to be conducted before, and
separately from, consideration of the statutory factors).

I. Thomas’s Ability to Pay Alimony

¶9 Nicholson first contends that the district court’s findings
were “insufficient to support terminating alimony because [the
court] made no findings as to [Thomas’s] ability to provide
continuing support.”

¶10 “The standard for findings in modification proceedings is
well established.” Williamson, 1999 UT App 219, ¶ 9. The district
court “must make findings on all material issues, and its failure
to delineate what circumstances have changed and why these
changes support the modification made in the prior divorce
decree constitutes reversible error unless the facts in the record
are clear, uncontroverted and only support the judgment.”
Whitehouse v. Whitehouse, 790 P.2d 57, 61 (Utah Ct. App. 1990).
The findings “must be sufficiently detailed and include enough
subsidiary facts to disclose the steps by which the ultimate
conclusion on each factual issue was reached.” Id.

¶11 In this case, the district court determined that, although
Thomas’s retirement was foreseeable and in fact foreseen at the

2. Williamson’s list of four factors is drawn verbatim from the
then-current version of the Utah Code. The relevant statute has
since been expanded to seven factors and renumbered as Utah
Code section 30-3-5(8)(a). The requirement that a court must
consider the original four factors in a modification proceeding
therefore likely applies with equal force to the three factors that
have since been added. Here, however, neither party alleges that
the district court erred by failing to consider the three new
factors.

20151021-CA 5 2017 UT App 155
 Nicholson v. Nicholson

time of the divorce, the specific language of the parties’
stipulation allowed for termination or modification of alimony
based upon her retirement.3 The court noted that Thomas had
not taken an early retirement; rather, “she retired at a reasonable
retirement age.” The court ultimately ruled that modification
was appropriate and turned to the consideration of the factors
listed in section 30-3-5(8)(a). But in its analysis of the factors, the
court did not enter detailed written findings as to Thomas’s
“ability . . . to provide support.” See Utah Code Ann. § 30-3-
5(8)(a)(iii) (LexisNexis 2013).

¶12 In isolation, the failure to enter written findings
quantifying a certain factor does not necessarily indicate that a
district court failed to consider that factor; rather, the lack of
specific findings may be the result of the district court’s
conclusion that the factor is not a “material issue[]” under the
circumstances of the case at hand. See Whitehouse, 790 P.2d at 61
(noting the court’s obligation to “make findings on all material
issues” (emphasis added) (citation and internal quotation marks
omitted)). And the district court’s decision here, considered as a
whole, shows that this is exactly what occurred.

¶13 The district court first determined that Nicholson did not
have unmet financial needs. See Utah Code Ann. § 30-3-5(8)(a)(i),
(ii) (requiring the court to consider the recipient spouse’s
financial need and ability to meet that need). As a result, the
court ruled that Thomas’s “income and assets are irrelevant to
the [modification] inquiry.” In other words, it appears the
district court reasoned that, because the recipient spouse—
Nicholson—had no unmet need, further consideration of and
explicit findings regarding the payor spouse’s ability to pay
were not material to the court’s analysis.

3. According to Nicholson’s reply brief, he “does not dispute the
trial court’s determination that the first step to alimony
modification, the substantial material change threshold, was
met.”

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 Nicholson v. Nicholson

¶14 We agree with the district court’s legal reasoning. Though
it would have been the best practice and could have facilitated
review of the decision on appeal, the district court did not first
need to make explicit findings as to how much Thomas could
afford to pay if there was no demonstrated financial need on
Nicholson’s part. See Dobson v. Dobson, 2012 UT App 373, ¶ 24,
294 P.3d 591 (noting that “the trial court correctly indicated that
without a compelling and extraordinary reason, it could not
award [the recipient spouse] more alimony than her established
needs, regardless of [the payor spouse’s] ability to pay”); see also
Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378
(explaining that “regardless of the payor spouse’s ability to pay
more, the recipient spouse’s demonstrated need must constitute
the maximum permissible alimony award” (brackets, ellipsis,
citation, and internal quotation marks omitted)); Sellers v. Sellers,
2010 UT App 393, ¶ 3, 246 P.3d 173 (agreeing that “unless the
court determines that the party seeking alimony has insufficient
income to meet his or her own needs, there is no occasion to
consider the other section 30-3-5(8)(a) alimony factors”). Even in
the absence of ability-to-pay findings regarding Thomas, the
court’s ruling here is “sufficiently detailed and include[s]
enough subsidiary facts to disclose the steps by which the
ultimate conclusion on each factual issue was reached.” See
Williamson, 1999 UT App 219, ¶ 9 (citation and internal quotation
marks omitted). And once the finding that Nicholson had no
unmet financial needs was made, there was no other legal result
possible. See Dobson, 2012 UT App 373, ¶ 24. We therefore
conclude that, in light of its other findings, the court’s limited
consideration of and failure to enter specific findings about “the
ability of the payor spouse to provide support” was not
incorrect. See Utah Code Ann. § 30-3-5(8)(a)(iii).

II. Nicholson’s Need for Alimony

¶15 Nicholson also contends that “[t]he trial court erred in
terminating alimony based on [his] current needs and ability to
provide for those current needs when [his] needs and ability to
provide have not changed since the time of the divorce.” His

20151021-CA 7 2017 UT App 155
 Nicholson v. Nicholson

argument appears to be two-fold; first, that his needs were res
judicata because modification proceedings had been initiated by
a change in Thomas’s income rather than Nicholson’s needs, and
second, that the court should have attempted to maintain the
standard of living he enjoyed at the time of the divorce rather
than his standard of living at the time of modification.

A. Res Judicata

¶16 Nicholson asserts that the district court’s modification
analysis should have been limited to consideration of the
alimony factor or factors in which it found a “substantial
material change.” He argues that “[t]he other issues and factors
in an initial alimony determination . . . are still res judicata.” To
support this proposition, Nicholson selectively quotes
Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App.
1988), which noted that “[t]he doctrine of res judicata applies in
divorce actions.” But Nicholson neglects to mention that, two
sentences later in that opinion, this court noted, “However, the
application of res judicata is unique in divorce actions because of
the equitable doctrine which allows courts to reopen alimony,
support, or property distributions if the moving party can
demonstrate a substantial change of circumstances[.]”
Throckmorton, 767 P.2d at 123.

¶17 In any event, Utah law requires courts to reconsider
certain factors in alimony modification proceedings, even when
the door to modification has been opened only by a substantial
and material change in a different factor. Section 30-3-5(8)(a) of
the Utah Code prescribes a procedure for calculating the
appropriate amount of alimony: “The court shall consider at
least the following factors in determining alimony.” Because the
legislature has not enacted separate procedures for initial and
modification proceedings, the same procedure applies in both
situations. And because the language of the statute requires a
court to consider each of the statutory factors in the context of an
alimony modification proceeding, previous findings (including
those made during the initial alimony proceeding) have no

20151021-CA 8 2017 UT App 155
 Nicholson v. Nicholson

preclusive effect under the doctrine of res judicata. See
Williamson v. Williamson, 1999 UT App 219, ¶ 8, 983 P.2d 1103
(“Once [the modification] finding has been made, the court must
then consider at least the following factors in determining
alimony: (i) the financial condition and needs of the recipient
spouse; (ii) the recipient’s earning capacity or ability to produce
income; (iii) the ability of the payor spouse to provide support;
and (iv) the length of the marriage.” (citation and internal
quotation marks omitted)); supra ¶ 8 note 2.

¶18 We therefore conclude that the district court did not err
by considering Nicholson’s need for alimony despite ruling that
the substantial and material change necessitating modification
was in Thomas’s retirement.

B. Time Frame for Needs Calculation

¶19 Nicholson next asserts that the district court erred by
considering his financial needs at the time of the modification
rather than his needs at the time of separation. Nicholson bases
this assertion on the alimony statute’s pronouncement that, “[a]s
a general rule, the court should look to the standard of living,
existing at the time of separation, in determining alimony.” See
Utah Code Ann. § 30-3-5(8)(e) (LexisNexis 2013).

¶20 As an exception to the “general rule,” the statute further
provides that the court “may, in its discretion, base alimony on
the standard of living that existed at the time of trial.” Id. We
understand this exception to allow a court the discretion to
consider the standard of living at the time the modification
petition is tried. Such a reading comports with the rationale
underlying alimony modification proceedings: adjustment to
reflect changed financial circumstances.

¶21 Indeed, our statutes and case law provide that the court
should consider both parties’ situations as of the time of the
modification. See id.; Williamson, 1999 UT App 219, ¶ 11. The
court is not required to impoverish one party to provide the

20151021-CA 9 2017 UT App 155
 Nicholson v. Nicholson

marital standard of living to the other when such a standard
could not be maintained if the parties were still married and
shared their incomes. See, e.g., Earhart v. Earhart, 2015 UT App
308, ¶ 16 n.5, 365 P.3d 719 (noting that “when a payor spouse
suffers an unintentional reduction in income, splitting or sharing
the pain of the shortfall is an appropriate goal for alimony
modification”).

¶22 We conclude that, under these circumstances, it was
appropriate for the district court to base its analysis on
Nicholson’s current financial situation. See e.g., Williamson, 1999
UT App 219, ¶ 11 (remanding to the district court with
instructions to “consider current evidence of the parties’ financial
situations” (emphasis added)).

III. Good Faith

¶23 Nicholson contends that the district court “erred in failing
to recognize that [Thomas] was not acting in good faith when
she entered into a stipulation with [Nicholson] in 2008.”
Nicholson did not identify this issue in his statement of the
issues presented for review, did not identify a standard of
review, and did not address the issue’s preservation. See Utah R.
App. P. 24(a)(5). We therefore reject this contention in its
entirety.

IV. Attorney Fees and Costs

¶24 Thomas seeks an award of attorney fees and double costs
pursuant to rules 33 and 34 of the Utah Rules of Appellate
Procedure. She contends that Nicholson’s appeal is
“undoubtedly . . . for improper purposes” and that his
“argument is not grounded in fact, warranted by existing law,
and is not based on a good faith argument.”

¶25 Rule 33(a) requires us to award “just damages,” such as
single costs, double costs, or attorney fees, if we determine that
an appeal “is either frivolous or for delay.” An appeal is

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 Nicholson v. Nicholson

frivolous when it “is not grounded in fact, not warranted by
existing law, or not based on a good faith argument to extend,
modify, or reverse existing law.” Utah R. App. P. 33(b).
Although Nicholson’s contentions are ultimately unsuccessful,
under these standards, we do not consider his contentions
frivolous or for delay. Consequently, we do not award damages.4

CONCLUSION

¶26 The district court’s consideration of Thomas’s ability to
pay was adequate in light of the court’s determination that
Nicholson had not demonstrated unmet needs. The district court
did not err by analyzing the alimony modification factors set
forth by statute. And the district court correctly considered the
parties’ situations at the time of modification rather than at the
time of the divorce or separation.

¶27 Affirmed.

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

20151021-CA 11 2017 UT App 155