This case is one of those prime examples of just how complex divorce cases can get and just how tough a Judge's job can be in deciding them. The parties in the case were married in 1972 and filed for divorce in 2004. In the process of the divorce action temporary orders were entered that divided the debts and awarded the wife alimony during the pendency of the divorce (in other words, from the time of the temporary orders until the final order or stipulation). The husband later asked the judge to modify the temporary orders to change the alimony and debt distribution. The trial was no small event and included a cast of witnesses that included not only the parties but also several medical doctors, a vocational expert, a certified public accountant, and several other experts and lay witnesses. The wife's primary aim in bringing in all the witnesses appeared to be to prove that she was unemployable, and therefore, the court should attribute no income to her for purposes of deciding alimony.
Judge Dever in Salt Lake's Third District ultimately made a very detailed decision, including fairly detailed findings of fact and conclusions of law, where he imputed the wife income at $9 an hour (meaning that the wife did not actually make this amount but the Court determined that she could make this amount) and other income from royalties. Judge Dever ordered alimony to be paid to the wife in the amount of $2,358 per month until the husband retired, at which time the alimony would decrease, and with alimony ending when the wife turned sixty-six and would be eligible for social security.
The wife appealed just about everything about the Court's decision, including the decision to impute her income, the amount of the alimony award, the Court's decision to decrease the alimony amount upon the husband's retirement, and the duration of the alimony. The wife also appealed the division of personal property, debts, and royalties (a form of residual payments made over time for patent rights (in this case)). Not to be outdone, the husband cross-appealed arguing that the Judge Dever did not divide the royalties properly. They both argued that the Judge was wrong in ordering that the husband pay $8,000 towards the wife's attorney's fees.
It is important to note the standard of review for this type of case. For those not familiar with legal speak, a standard of review is the guideline for any appellate court's decision (In Utah, there are two appellate courts for most cases filed in district court - the Utah Court of Appeals, and the Utah Supreme Court). Beware! An appeal is not another bite at the apple, but more of a review of the trial court's decision. You don't get to put on your witnesses again and re-argue the case - the appellate court's decision is made based on transcripts of the trial, a review of the documents filed in the trial court, written briefs, and in some cases, oral argument before a panel of appellate judges.
With most issues involving divorce cases the appellate court can only overturn a trial court's decision if they find "abuse of discretion" by the judge. Practically speaking, what an "abuse of discretion" standard means is that it is very rare that an appellate court will overturn a trial court when this is the standard. In most cases, you are facing an uphill battle to get the decision overturned. The reason for this is that the appellate judges defer to the trial court judge because he/she is the one who actually hears all the testimony, looks at all the evidence, and has to make the tough calls. In other words, the appellate judges don't want to be armchair quarterbacks, but act as a kind of referee who can make everyone go back and do a play again but only in cases when the rules are not followed. (See, even I can make a sports analogy).
As the Court of Appeals noted in this case, when a trial judge enters detailed findings of fact that support its decision to impute income to a party, the Court of Appeals will generally hold that the court did not abuse its discretion by imputing income. Similar rules apply to other issues as well, as long as the trial court addresses the factors required by case law and statute. In this case, the Court of Appeals ruled that because Judge Dever's findings of fact (specifics rulings regarding the facts based on the evidence presentede) as to why he imputed the wife income were sufficiently detailed, they would uphold his decision. In contrast, because the judge did not explain why he decided that some of the parties' monthly living expenses were not reasonable, the Court of Appeals decided to reverse and remand the case for additional findings. Basically, the Court of Appeals kicked the case back down for Judge Deve to make more specific findings as to why he decided as he did. Similarly, the Court of Appeals determined that Judge Dever's findings for why he decided to reduce the wife's alimony upon the husband's retirement and why he decided to cut off the wife's alimony at age 66 were not sufficiently detailed, and consequently, reversed and remanded those issues. Ditto on the issue of division of personal property, future royalty payments, and debt division. While the Court of Appeals also determined that they did not have sufficient findings of facts for the attorney's fee award, the Court of Appeals did find that the Court's reasoning to deny an award of costs to the wife for an appraisal were sufficient and upheld that part of the decision.
Long and short, this case is still not done! This case will go back to Judge Dever and he will have to make new findings of fact. If he does not have enough evidence to make his decision, he may even take more evidence. The parties filed for divorce in 2004, and while a bifurcated divorce was granted, over the next two years the parties duked it out over alimony and other issues, and Judge Dever's final decision was not made until February 2007. The last two years the case has been before the Court of Appeals, and on January 15, 2009 they issued their decision. (You can read the entire eleven page decision at http://www.utcourts.gov/opinions/appopin/leppert011509.pdf.) The only bright side, in my opinion, is that the wife she was awarded her attorney's fees for the appellate portion of the trial. Silver lining? You decide.
