Burggraaf v. Burggraaf

2019 UT App 195

THE UTAH COURT OF APPEALS

CAROL BURGGRAAF,
Appellee,
v.
BRIAN JOSEPH BURGGRAAF,
Appellant.

Opinion
No. 20180405-CA
Filed November 29, 2019

Second District Court, Ogden Department
The Honorable Camille L. Neider
No. 154902227

Julie J. Nelson, Erin B. Hull, and Benjamin G. Larsen,
Attorneys for Appellant
Suzanne Marelius, Attorney for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

APPLEBY, Judge:

¶1 In April 2018, Brian Joseph Burggraaf and Carol
Burggraaf divorced after nearly twenty-two years of marriage.
Following a bench trial, the district court entered findings of fact
and conclusions of law and granted a decree of divorce. Joseph 1
contends the court erred when it (1) imputed income to him for
the purpose of calculating child support and alimony,
(2) determined he owed unpaid child support, (3) found the

1. Because both parties share a last name, we use their given
names “with no disrespect intended by the apparent
informality.” Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d
985.
 Burggraaf v. Burggraaf

majority of his student loans to be separate debt, and (4) set his
budget for the purpose of calculating alimony. Joseph also
contends the court’s overall property distribution was
inequitable. We affirm in large part but vacate the modest
alimony award.

BACKGROUND 2

Education and Work History

¶2 Joseph and Carol married and had five children. A few
years into the marriage, Joseph decided to pursue a medical
degree and the family moved to Colorado for his studies. Joseph
has a learning disability that hinders his ability to “process[] new
information,” and as a result he struggled academically during
medical school. With testing accommodations, he was able to
pass the first two medical board exams, but only after attending
a tutoring program in Illinois. The parties agree that it cost
approximately $4,000 each time Joseph attended the program,
but they disagree as to whether the medical school or Joseph’s
student loans paid for it, though Joseph offered no evidence to
show the medical school had paid for the program. Joseph
graduated with a medical degree and approximately $260,000 in
student loan debt.

¶3 After graduating from medical school, Joseph did not
obtain a full-time residency but was able to secure a temporary
position in the state of Washington. He was not offered a

2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the [district] court’s findings, and therefore
recite the facts consistent with that standard” and “present
conflicting evidence to the extent necessary to clarify the issues
raised on appeal.” Kidd v. Kidd, 2014 UT App 26, n.1, 321 P.3d
200 (quotation simplified).

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permanent position there and was unemployed for one year.
Joseph returned to the Illinois tutoring program as a preemptive
measure for the third and final board exam, passage of which is
required to become a licensed practicing physician. Although he
finished the tutoring program, Joseph did not immediately take
the exam. Instead, he obtained another temporary residency in
Georgia but was fired after thirteen months. Joseph then took the
final board exam and failed. He returned to Illinois for the
tutoring program but ultimately did not retake the exam because
he decided he “would not likely pass.” After considering these
facts, the district court determined Joseph “chose to abandon his
pursuit of work in the medical field.”

¶4 During Joseph’s medical school and residency pursuits,
Carol was “mostly a stay at home mother” who occasionally
taught piano lessons to earn extra money. At trial she testified
that the family’s frequent moves made it difficult for her to
maintain a consistent client base for these lessons. While Joseph
was in medical school and residency, the family received
government and charitable assistance to make ends meet. At the
time of trial, Carol earned approximately $1,100 per month.

¶5 Since deciding to forgo becoming a licensed physician,
Joseph’s employment history was sporadic. He was a substitute
teacher earning $82 per day for a short time before starting his
own business funded by a $16,500 loan from his father. The
business failed after a few months; Joseph recouped the
investment, but he earned nothing more. He then took seasonal
contracting work, earning between $1,863 and $2,900 per month
for six months. After that, he sold insurance for a few months; in
his “best month” he earned about $900. At the time of trial,
Joseph was earning $1,200 per month at a river “tubing”
business, working ten-to-twenty hours per week during the
off-season and seventy-to-eighty hours per week in the summer.
Joseph testified that he also was attending school in pursuit of a
master’s degree, which put his student loans in deferment.

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The Divorce

¶6 The parties separated following a domestic violence
incident, and Carol was granted temporary custody of their five
children. Joseph later pled no contest to the criminal charges and
was convicted of a class B misdemeanor. 3 Approximately six
months later, Joseph began paying Carol $200 per month for
child support, which he calculated on his own without a court
order.

¶7 The divorce was finalized three years after the date of
separation following a four-day bench trial. After hearing
evidence from both parties, the court determined Joseph was
willfully underemployed and imputed his income for the
purposes of calculating child support and alimony, granted
Joseph and Carol joint physical and joint legal custody of the
children, determined Joseph owed Carol unpaid child support,
found the majority of Joseph’s student loans to be separate debt,
and awarded Carol alimony. The court also distributed the
marital property and debts, accounting for offsets and credits as
necessary.

Income Imputation

¶8 Both parties asked the district court to impute the other’s
income because each claimed the other was willfully
underemployed and his or her claimed income did not reflect his
or her employment potential.

¶9 The court determined Carol was not willfully
underemployed and, using her previous three years’ tax returns,
imputed to her a monthly salary of $1,750. But the court found
Joseph was willfully underemployed and had “substantially

3. Joseph denies the allegation and claims the conviction
prevents him from obtaining meaningful employment.

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undermined the financial stability” of the family. The court
noted Joseph’s history of being secretive about his finances and
said he had “lacked candor with [Carol] and the Court.” The
court found it significant that Joseph did not “pursue[]
employment associated with his medical degree” and that his
“choices of employment [were] significantly different, without
believable explanation, depending on if the parties were together
or separated.” Further, Joseph did not provide the court with
information about “all of his financial accounts” and “ha[d] been
untruthful about the true nature of his income and assets.”
Joseph also failed to provide evidence of “his current paycheck
being deposited.”

¶10 Although Carol asked the court to impute a medical
doctor’s salary to Joseph, the court declined to do so, as it was
too speculative. Because neither party presented evidence to
show what a person in Joseph’s situation—holding a medical
degree but not being a licensed physician—could earn in the
local area, the court was left to cobble together an average
monthly income using Joseph’s earnings when he owned his
business and did contracting work as “the most credible
evidence of [his] potential income.” The court found it
“equitable and just to impute” to Joseph a monthly income of
$3,421.

Child Support and Child Custody

¶11 The district court granted Carol and Joseph joint physical
and joint legal custody of their five children. In its order, the
court gave the two eldest children “broad discretion to exercise
parent time in whatever amount they fe[lt was] appropriate with
either parent,” although they were “not obligated to exercise
said parent time.” The court also recommended the three eldest
children “participate in reunification therapy” with Joseph,
which they “may attend if they so desire but will not be forced.”
With regard to the three youngest children, the court gave

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Joseph overnight parent-time every other weekend and one
weeknight every other week and, during the other weeks, one
non-overnight midweek visit. Carol was given “all other regular
parent time not awarded to” Joseph, with the parties sharing
statutorily prescribed holiday time and summer vacation.

¶12 In determining Joseph’s child support obligation, the
court acknowledged the parties stipulated to joint physical
custody but noted Carol was in reality the “primary custodial
parent” and thus “responsible for all of the day-to-day out-of-
pocket expenses for the children while they are with [her].”
Joseph also testified he never had more than every other
weekend with the two eldest children and Carol testified their
middle child “often chose[] to do other things” than stay with
him. Although Joseph calculated his child support obligation on
his own to arrive at his $200 monthly figure, he failed to take
into account the fact that only the two youngest children were
with him for 142 nights, or more than thirty percent of the year. 4
Because of this, the court used the sole custody worksheet to
determine Joseph’s child support obligation.

¶13 The court gave Joseph credit for paying $200 per month (a
total of $4,847.50) but, because it decided Joseph’s child support
obligation was actually $1,138 per month during that period, he
owed Carol more than $40,000 in unpaid child support.

Student Loans

¶14 At trial, Joseph argued his student loans, which were “in
excess of $260,000,” should be considered a marital debt. He

4. “‘Joint physical custody’ means the child stays with each
parent overnight for more than 30% of the year, and both
parents contribute to the expenses of the child in addition to
paying child support.” Utah Code Ann. § 78B-12-102(15)
(LexisNexis 2018).

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claimed only $59,551.34 of the money was used for medical
school tuition and the rest was used for family expenses. He
testified that the medical school paid for all books, laboratory
coats, and equipment, such as stethoscopes. Carol denied this
and testified that not only was the family using government
assistance and charitable donations to pay their living expenses,
but Joseph kept the money from his student loans in a separate
account to which Carol had no access. Evidence also showed
Joseph incurred “extra costs” such as “equipment, study aids,
tutoring resources and [the Illinois] preparation course based on
his perceived need due to his processing/learning disorder that
were above and beyond the tuition expenses.” To dispute this,
Joseph offered into evidence bank statements from two months
showing a total of $3,308 in student loan money was deposited
into the couple’s joint account, which was used for “living
expenses, to pay the rent . . . utility bills . . . [and] kid expenses.”

¶15 The district court determined Joseph’s student loan debt
was his separate obligation, with the exception of the $3,308
deposit into the joint checking account. In making this
determination, the court found Joseph was not “credible in his
representation that of $260,000 in student loans, only 25% was
needed for actual school related costs.” The court noted Joseph
“is the only one that may ever receive any benefit of his medical
degree if he ever chooses to utilize it” and that he “solely
decided to abandon his plans to be a licensed medical doctor.”
Because of this, the court concluded “it would be unjust to
require” Carol to share in the responsibility for the student
loans.

Alimony

¶16 In preparation for trial, Carol and Joseph each submitted
to the court estimated monthly budgets. Joseph’s total monthly
budget was $4,706 and included a line item for “education (self)”

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of $1,500. Carol’s monthly budget was $5,476, including a line
item for “extra-curricular activities (children)” of $850.

¶17 Each testified extensively about their monthly expenses.
Joseph did not produce documentation to support his contention
that he paid $1,500 per month for his current educational
pursuits. But he testified that his medical school student loans
were in deferment because he was attending school. The parties
each testified that, during the marriage, they struggled
financially. At one time, they lived with Joseph’s parents, and
they often received institutional charity, government aid, and
help from their families.

¶18 In its findings of fact and conclusions of law, the district
court adjusted Carol’s budget and removed anything it found to
be “discretionary and not reasonable necessary expenses,”
including the children’s extra-curricular activities. The court
determined Carol’s reasonable monthly budget to be $2,855,
which, after calculating child support and her imputed income,
left “her with a shortfall of $86 per month.”

¶19 The court declined to give Joseph a line item for his
student loans because they were in deferment and he was not
making payments on them. He also did not get a line item for his
current educational expenses. The court said it omitted these
items from Joseph’s submitted budget as discretionary and
unnecessary “[b]ased on the testimony of the parties and the
verifying documents presented at trial,” noting “none of
[Joseph’s] documents reflect any student-aid, loans[,] or other
assistance or expenses related to his current course of study” and
Joseph “claimed to be paying approximately $1,500 per month in
educational expenses for himself . . . with no documentation.”

¶20 In determining Joseph owed Carol alimony, the court
considered:

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[T]he financial condition and needs of [Carol], [her]
earning capacity or ability to produce income,
including the impact of diminished workplace
experience resulting from primarily caring for the
children, the length of the marriage, whether [she]
has custody of the minor children requiring
support, and whether [she] directly contributed to
any increase in [Joseph’s] skill by enabling [him] to
attend school during the marriage.

The court found each factor supported an award of alimony. The
court also noted “there was credible evidence that [Joseph]
knowingly and intentionally caused physical harm to [Carol]
and [Joseph] substantially undermined the financial stability of”
the family, which the court said further supported the alimony
award. Because the court imputed a monthly income of $3,421 to
Joseph, after subtracting what it deemed his reasonable monthly
expenses, the court determined he had an excess of $446 per
month.

¶21 Using the budgets the court set and the parties’ imputed
income, the court determined Joseph had an unpaid alimony
obligation of $5,580, to be deducted from his share of the
proceeds generated from the sale of their house, a marital asset.
The court also determined Joseph’s ongoing alimony obligation
to Carol would be $86 per month to account for her shortfall.

Property Distribution

¶22 Joseph and Carol had a marital home that they sold
before the divorce for $205,374.05, the proceeds of which were
kept in a trust account. The district court began the property
division by allocating half of the proceeds to each party. It then
determined the value of certain items of disputed property and
to whom the items should be awarded. As it did this, the court
gave the non-receiving party an offset from the recipient’s house
proceeds. For example, Carol was awarded a grand piano,

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valued at $11,907, and Joseph was thus awarded a $5,953.50
offset from Carol’s share of the house proceeds. The court used
this same method to divide the marital debts and to reimburse
Carol for half of the children’s medical, dental, and orthodontic
bills she had incurred on her own. Because the court found
Joseph owed Carol unpaid child support and unpaid alimony,
those amounts also were deducted from his share of the house
proceeds. In addition to his student loan debt, Joseph was
deemed solely responsible for the $16,500 loan from his father
and $4,000 he had charged on the joint credit card for attorney
fees related to his criminal case. The court divided the remaining
debts equally.

ISSUES AND STANDARDS OF REVIEW

¶23 Joseph raises five issues on appeal. First, he claims the
district court’s imputation of his income to calculate his child
support and alimony obligations was in error because the court
failed to apply the statutory guidelines. “We review the [district]
court’s interpretation of statutory requirements for correctness.”
Busche v. Busche, 2012 UT App 16, ¶ 7, 272 P.3d 748. The court’s
ultimate imputation of income is reviewed for abuse of
discretion. Pulham v. Kirsling, 2019 UT 18, ¶ 41, 443 P.3d 1217.

¶24 Second, Joseph contends the district court erred when it
calculated his child support obligation and found he owed
unpaid child support. “Because [district] courts have broad
discretion to award child support, we will not disturb such
decisions absent an abuse of discretion.” Reller v. Argenziano,
2015 UT App 241, ¶ 15, 360 P.3d 768 (quotation simplified).

¶25 Third, Joseph contends the district court erred when it
determined the majority of his student loan debt to be his
separate obligation. “There is no fixed formula for determining
the division of debts in a divorce action. We require only that the
district court’s allocation of debt be based on adequate factual

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findings. And we will not disturb those findings absent an abuse
of discretion.” Dahl v. Dahl, 2015 UT 79, ¶ 139 (quotation
simplified). 5

¶26 Fourth, Joseph alleges the district court erred when it set
his budget for the alimony calculation. District “courts have
considerable discretion in determining alimony and
determinations of alimony will be upheld on appeal unless a
clear and prejudicial abuse of discretion is demonstrated.”
Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367 P.3d 1036
(quotation simplified).

¶27 Finally, Joseph claims the district court’s overall
distribution of property is inequitable. District courts have
“considerable discretion” in this area as well, and we will
uphold the district court’s decision concerning property
distribution “unless a clear and prejudicial abuse of discretion is
demonstrated.” Gerwe v. Gerwe, 2018 UT App 75, ¶ 8, 424 P.3d
1113 (quotation simplified).

ANALYSIS

I. Income Imputation

¶28 Joseph contends the district court erred when it imputed
his income, alleging the court did not follow Utah Code section
78B-12-203 regarding (1) gross annual income,
(2) self-employment income, and (3) the factors for imputing
income. Income may be imputed to a party if, “in contested
cases, a hearing is held and the judge . . . enters findings of fact

5. Our practice is to provide a parallel citation to reported Utah
appellate opinions. For reasons unknown, this opinion has not
found its way into the Pacific Reporter, third series, in the four
years since it was issued.

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 Burggraaf v. Burggraaf

as to the evidentiary basis for the imputation.” Utah Code Ann.
§ 78B-12-203(8)(a) (LexisNexis 2018). 6 Because the parties each
wanted the other’s income imputed, the district court heard
evidence related to their incomes.

A. Gross Annual Income

¶29 Utah Code section 78B-12-203 establishes the method by
which district courts may impute gross income. Section
78B-12-203(5)(a) directs courts, “[w]hen possible,” to compute
income “on an annual basis and then recalculate[] to determine
the average gross monthly income.” As Joseph points out,
“courts frequently average several years of income.” (Citing Taft
v. Taft, 2016 UT App 135, ¶ 17, 379 P.3d 890; Tobler v. Tobler, 2014
UT App 239, ¶¶ 8, 28, 337 P.3d 296; Dobson v. Dobson, 2012 UT
App 373, ¶ 2, 294 P.3d 591.) He claims the court erred because it
took his “few highest earnings months out of the last several
years and made that the imputation number.” (Quotation
simplified.) But this does not necessarily constitute error. The
statute says courts must compute an annual income “when
possible.” Utah Code Ann. § 78B-12-203(5)(a) (emphasis added).
Because Joseph had not held a consistent job and failed to
provide “copies of all of his financial accounts,” proof of his
current income being deposited, or his tax documents (even after
the court requested them), it was well within the court’s
discretion, under the circumstances, to impute Joseph’s income
as it did, and doing so did not constitute a “misunderstanding or
misapplication of the law.” Anderson v. Anderson, 2018 UT App
19, ¶ 19, 414 P.3d 1069 (quotation simplified); see also Dole v. Dole,

6. Although this statute “addresses imputation for the purposes
of child support, it is also relevant to imputation in the alimony
context.” Fish v. Fish, 2010 UT App 292, ¶ 14 n.5, 242 P.3d 787.
Because the material provisions cited have not changed, we cite
the current version of the Utah Code.

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2018 UT App 195, ¶ 7, 437 P.3d 464 (upholding imputation when
“the actual income of [a spouse] is impossible to determine due
to [his or her] dishonesty to [the district court], to [his or her]
unaccountable income, and to his [or her] failure and refusal to
obtain traditional employment” (quotation simplified)). Thus,
we do not disturb the court’s imputation of Joseph’s income by
averaging his monthly income from owning his own business
and performing contracting work.

B. Self-Employment Income

¶30 Joseph next argues the district court failed to follow
statutory procedures for imputing income for a self-employed
individual. If a party is self-employed or operates his or her own
business, Utah law directs courts to “subtract[] necessary
expenses required for self-employment or business operation
from gross receipts.” Utah Code Ann. § 78B-12-203(4)(a). Joseph
started his own business with a $16,500 loan and operated it for
three months, during which time he recouped the investment
but earned nothing more. When imputing his income, the
district court divided $16,500 by three and determined Joseph
was capable of earning $5,500 per month. Joseph argues this was
in error because he “earned nothing” during that period after
subtracting necessary business expenses, which he identified as
a computer, scanner, insurance, and travel. But Joseph did not
provide any evidence of business expenses, and the court
recognized his history of being “secretive about his finances”
and his lack of candor. The court merely used this figure as a
“high water mark” as evidence of his “potential income.” In
these circumstances, the court’s decision was not an abuse of
discretion.

C. Statutory Factors

¶31 Finally, Joseph asserts the district court failed to follow
the factors identified in Utah Code section 78B-12-203(8)(b). A
court may not impute income to a party in contested cases unless

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“a hearing is held and the judge . . . enters findings of fact as to
the evidentiary basis for the imputation.” Id. § 78B-12-203(8)(a).
The court “shall” base the imputation on ten factors, “to the
extent known.” Id. § 78B-12-203(8)(b). These factors are
“(i) employment opportunities; (ii) work history; (iii) occupation
qualifications; (iv) educational attainment; (v) literacy; (vi) age;
(vii) health; (viii) criminal record; (ix) other employment barriers
and background factors; and (x) prevailing earnings and job
availability for persons of similar backgrounds in the
community.” Id.

¶32 Joseph claims the district court “failed to acknowledge the
factors that are most important here,” namely employment
opportunities, work history, health, criminal record, other
employment barriers and background factors, and prevailing
earnings and job availability for persons of similar backgrounds
in the community. But the record is clear that the court did
consider these factors; the factors simply did not weigh in
Joseph’s favor. For instance, Joseph argues the court should have
considered his learning disability and criminal record, which it
did. The court found Joseph “still very employable even
considering those obstacles” and pointed to Joseph’s own
testimony, which “emphasized his ability to work hard, long
hours and across many fields of employment.” Joseph did not
provide support for his assertion that his class B misdemeanor
was the reason he could not obtain more lucrative employment.
The court also considered Joseph’s work history. It noted his
“choices of employment have been significantly different,
without believable explanation, depending on if the parties were
together or separated” and found that “his current and historical
income during the parties’ separation is a deliberate attempt to
minimize his financial obligations.” It also found it incredible
that Joseph—an individual with a medical degree—was earning
“barely more than minimum wage.” Thus, the record shows the
court considered the statutory factors, and the conclusions it

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drew from its consideration of them were therefore well within
its broad discretion.

II. Child Support

¶33 Joseph next argues the district court erred when it
(1) used the sole custody worksheet to calculate his child
support obligation and (2) determined he owed Carol unpaid
child support. For the reasons detailed below, these arguments
fail.

A. Sole Custody Worksheet

¶34 In Utah, “child support obligations are generally
calculated using a worksheet in cases of joint physical custody.
Moreover, for purposes of calculating child support, the
designation of ‘joint physical custody’ or ‘sole physical custody’
is not as important as whether the custody arrangement exceeds
the statutory threshold for joint physical custody.” Stephens v.
Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (quotation
simplified). District courts are given broad discretion in
decisions regarding child support. Anderson v. Anderson, 2018 UT
App 19, ¶ 21, 414 P.3d 1069. If a court deviates from the statutory
guidelines, it must make a finding that following them “would
be unjust, inappropriate, or not in the best interest of a child.”
Gore v. Grant, 2015 UT App 113, ¶ 13, 349 P.3d 779 (quotation
simplified).

¶35 The district court noted Carol and Joseph had agreed
upon joint physical custody, but it nevertheless used the sole
custody worksheet to determine Joseph’s child support
obligation. The court supported its determination by making
findings that Carol actually had the three eldest children
overnight at her house for more than 70% of the time. Joseph’s
own testimony supports this determination: only the two
youngest children spent a standard parent time schedule with
him. Thus, Carol had sole physical custody—defined in terms of

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overnights, see Utah Code Ann. § 78B-12-102(15) (LexisNexis
2018)—of three of the children, and the parties shared joint
physical custody of two of the children. Under these unique
circumstances, we see no abuse of discretion in the district
court’s decision to apply the sole custody worksheet.

B. Unpaid Child Support

¶36 Joseph also claims the district court erred when it found
he owed thirty-six months’ worth of unpaid child support, based
upon his imputed income, dating back to the filing of the divorce
petition. He argues the court was without authority to ascribe
unpaid support to him retroactively because Carol never asked
the district court to enter a temporary order establishing the
appropriate amount of child support to be paid during the
pendency of the divorce case. But Joseph has not identified any
statute or caselaw to support his position. See Osborne v. Osborne,
2016 UT App 29, ¶ 21, 367 P.3d 1036 (“Where the contentions on
appeal are asserted without the support of legal reasoning or
authority, this court will not assume the appellant’s burden of
argument and research.” (quotation simplified)). Moreover,
“child support is a basic and unalienable right vested in the
minor,” Anderson, 2018 UT App 19, ¶ 39 (quotation simplified),
and “[e]very child is presumed to be in need of the support of
the child’s mother and father. Every mother and father shall
support their children,” Utah Code Ann. § 78B-12-105(1)
(LexisNexis 2018). Joseph was aware of his duty to support his
children, as evidenced by his $200 monthly payments to Carol.
Simply because he chose an arbitrary—and low—amount does
not absolve him of the responsibility to fully support his five
children.

¶37 Because Joseph failed to point us to statutory or other
authority to instruct us otherwise, we decline to conclude that
the district court abused its discretion in awarding Carol unpaid

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child support, dating back to the date the divorce petition was
filed, even in the absence of a temporary order.

III. Student Loans

¶38 Joseph challenges the district court’s determination that
the majority of the student loan debt was his separate obligation.
“Neither spouse is personally liable for the separate debts,
obligations, or liabilities of the other . . . contracted or incurred
during the marriage, except family expenses.” Utah Code Ann.
§ 30-2-5 (LexisNexis 2018). “There is no fixed formula for
determining the division of debts in a divorce action. We require
only that the district court’s allocation of debt be based on
adequate factual findings. And we will not disturb those
findings absent an abuse of discretion.” Dahl v. Dahl, 2015 UT 79,
¶ 139 (quotation simplified).

¶39 We see no abuse of discretion in the court’s finding that,
in these unique circumstances, the majority of the student loan
debt should be considered Joseph’s separate obligation. The
court determined that Joseph alone had made the decision to
“abandon his plans to be a licensed medical doctor” and that he
should therefore be responsible for repaying the vast majority of
the student loans associated with obtaining his medical degree.
The court supported its conclusion by reviewing the parties’
testimonies about the loans and determining Carol to be the
most credible. “Credibility determinations are within the
province of the [district] judge, who is uniquely equipped to
make factual findings based exclusively on oral testimony due to
his or her opportunity to view the witnesses firsthand, to assess
their demeanor and to reconsider their testimonies in the context
of the proceeding as a whole.” Kidd v. Kidd, 2014 UT App 26,
¶ 34, 321 P.3d 200 (quotation simplified).

¶40 The court did not find Joseph’s testimony about using
approximately $200,000 of his student loans for family expenses
credible. Joseph provided no evidence to support his claim,

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other than two bank statements showing $3,308 was deposited
into their joint account; the rest was kept in a separate account to
which Carol had no access. Conversely, the court found Carol’s
testimony “about the resources she utilized from teaching piano
lessons, welfare from the parties’ church, family help and
government assistance . . . credible and believable.” The court
also noted Joseph’s testimony about “the extras that he needed
in order to successfully complete medical school course work
and the licensing tests,” but indicated Joseph “did not
acknowledge any were above and beyond the tuition amount.”
In these circumstances, the court’s findings were not an abuse of
its broad discretion.

IV. Alimony

¶41 Joseph argues the budget the district court set for him in
calculating his alimony was arbitrarily low, because it (1) failed
to give him a line item for either his student loan debt or his
current educational expenses, (2) failed to calculate his alimony
obligation using the marital standard of living, and
(3) supported its alimony award by finding Joseph at fault.
District “courts have considerable discretion in determining
alimony and determinations of alimony will be upheld on
appeal unless a clear and prejudicial abuse of discretion is
demonstrated.” Osborne v. Osborne, 2016 UT App 29, ¶ 25, 367
P.3d 1036 (quotation simplified). Because we agree with Joseph
that the district court should have given him a line item in his
budget for either his student loan debt or tuition payments to
keep the loan in deferral, we do not address the marital standard
of living or fault arguments.

¶42 When deciding whether to award alimony, a district court
must consider seven statutory factors, including “the ability of
the payor spouse to provide support.” Utah Code Ann.
§ 30-3-5(8)(a)(iii) (LexisNexis Supp. 2019). In determining
Joseph’s alimony obligation, the court took each party’s

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proposed monthly budget and adjusted it to remove
discretionary expenses. It did not include a line item for Joseph’s
claimed $1,500 in educational expenses for himself. The court
also declined to give him a line item for his student loan debt,
because it was in deferment and he was not currently making
payments on it. Although the court weighed statutory factors
such as “the financial condition and needs of [Carol]; [her]
earning capacity or ability to produce income, including the
impact of diminished workplace experience resulting from
primarily caring for the children, the length of the marriage,
whether [Carol] ha[d] custody of the minor children requiring
support, and whether [she] directly contributed to any increase
in [Joseph’s] skill by enabling [him] to attend school during the
marriage,” see id. § 30-3-5(8)(i), (ii), (iv), (v), (vii), the court failed
to consider an additional mandatory factor, namely Joseph’s
ability to pay, id. § 30-3-5(8)(iii).

¶43 We conclude the court’s failure to consider Joseph’s
ability to pay alimony was a “clear and prejudicial abuse of
discretion.” Osborne, 2016 UT App 29, ¶ 25 (quotation
simplified). Because the district court found the majority of
Joseph’s student loan debt to be his sole obligation, it should
have included a line item in his budget either for his student
loan payments or for tuition payments that would keep the loan
repayment in deferral. We acknowledge Joseph is not currently
making student loan payments, but because he was found solely
responsible for the loan debt and his share of the house proceeds
are insufficient to pay off that debt, we cannot see on this record
how he would not be entitled to a line item in his budget to
account for either student loan payments or tuition payments. 7

7. It is theoretically possible that Joseph could be the recipient of
a scholarship or other financial aid that would allow him to
attend school and thereby keep the student loan debt in
deferment without actually making any out-of-pocket payment.
(continued…)

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Although Joseph has a $446 excess in his court-determined
budget, a line item for even half of his requested educational
expenses would eliminate said excess. This would certainly
affect his ability to pay the most modest alimony award. We
therefore vacate the award of alimony.

V. Property Distribution

¶44 Finally, Joseph argues the district court’s overall property
distribution was inequitable. “Generally, district courts have
considerable discretion concerning property distribution in a
divorce proceeding and their determinations enjoy a
presumption of validity. Thus, we will uphold the decision of
the district court on appeal unless a clear and prejudicial abuse
of discretion is demonstrated.” Dahl v. Dahl, 2015 UT 79, ¶ 119,
(quotation simplified). Joseph contends he received “93% of the
total debt [but only] 25% of the liquid assets.” But as he points
out, we cannot “consider[] the property division in a vacuum.”
(Quoting Newmeyer v. Newmeyer, 745 P.2d 1276, 1279 n.1 (Utah
1987).) Because the debt division Joseph cites includes both his
student loan debt, the majority of which the court found was not
marital debt, and the loan Joseph received from his father, which
the court also found to be separate debt, the percentages he cites
are artificially inflated. In reality, the court split the marital debts

(…continued)
But there was no such evidence presented at trial, and the
district court made no findings to this effect. Joseph’s testimony
that he paid $1,500 per month to finance his current education
stands unrefuted. And such a situation would in any event be
relatively temporary; at some point in the near future, Joseph
will be compelled to begin making payments on $260,000 of
student loan debt that the district court assigned solely to him.
Some provision must be made in Joseph’s budget to account for
this expense.

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equally and did the same with the house proceeds. This does not
constitute “a clear and prejudicial abuse of discretion.” Dahl,
2015 UT 79, ¶ 119 (quotation simplified).

CONCLUSION

¶45 Because the district court did not exceed its considerable
discretion in imputing Joseph’s income, calculating child
support, finding the student loans to be separate debt, and in its
overall property distribution, we affirm its decisions on those
points. But we vacate the modest alimony award because Joseph
does not have the ability to pay it in light of his student loan
debt.

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