Divorce Law; Alimony in Utah: Fault or No Fault?

Utah Divorce Attorney Blog | Alimony in Utah; Fault or No-fault?

Alimony in Utah; Fault or No-Fault?

© J. David Milliner, February 21, 2013.

For more than a hundred years, Utah courts have considered the issue of “fault” when awarding and determining alimony. See, e.g., In re Christiansen, 17 Utah 412, 432, 53 P. 1003 (Utah 1898) (discussing “the rights of the husband or wife not at fault” with respect to “alimony,” “support” and “maintenance” (emphasis added); Stover v. Stover, 24 Utah 92, 94-96, 66 P. 766 (Utah 1901) (reversing a trial court decree that awarded custody of the minor children to husband, and minimal alimony to wife, where husband was found “at fault” for the divorce); Fisk v. Fisk, 24 Utah 333, 339, 67 P. 1064 (Utah 1902) (Citing with approval Jenness v. Jenness, 24 Ind. 355, for the proposition that alimony statutes should be construed so that the relative fault of the parties can be taken into account.); Willardson v. Willardson, 52 Utah 96, 98, 172 P. 719 (Utah 1918) (Applying former Section 1216 of Utah Comp. Laws of 1907, which required district courts to award such alimony “as the court may determine in its discretion” “[w]here a married woman, without her fault, [lives] separate and apart from her husband.” (emphasis added)). Thus, there is a significant body of Utah common law that deals with the consideration of the relative fault of the parties when awarding and determining alimony.

In 1995, the Utah legislature amended Section 30-3-5 of the Utah Code to include the subsection now numbered as (8)(b), which allows, but does not require, trial courts to consider the issue of “fault” when determining alimony awards. See, Riley v. Riley, 2006 UT App 214, ¶18 & n.2, 138 P.3d 84, quoting U.C.A. §30-3-5(8)(b) for the proposition that in determining an alimony award, “the court may consider the fault of the parties.” (Emphasis added.) Following Section 30-3-5(8)(b) of the Utah Code, the unanimous Riley court affirmed a trial court’s award of alimony to a wife that exceeded “the shortfall between her demonstrated monthly expenses and her monthly income” based in no small part, on the trial court’s consideration of the husband’s fault, which the Utah Court of Appeals described as engaging in “prolonged deceitful conduct that led to the divorce,” including pursuing an extra-marital affair that led to the birth of a child that he attempted to conceal from his wife. Id. at ¶¶5, 6, 18, 19, 23 & 24. Thus, as recently as 2006, the principle of considering the relative fault of the parties in determining alimony awards was alive and well in Utah law.

The 2009 case of Mark v. Mark, 2009 UT App 374, 223 P.3d 476, however, created significant controversy on this issue when a divided panel of the Utah Court of Appeals ruled that “[a]s currently, written, Utah Code section 30-3-5(8)(b) provides no meaningful guidance” on the issue of how to consider the relative fault of the parties in determining alimony. Id. at ¶18. As a result, the Mark majority held that “until the legislature clearly defines fault in the statute, it is inappropriate to attach any consequence to the consideration of fault when making an alimony award.” Id. at ¶20 (Davis, J. with Greenwood, P.J. concurring). In reaching this conclusion, the majority relied heavily on the judicially-created rule from Davis v. Davis, 2003 UT App 282 ¶9, 76 P.3d 716, and Christiansen v. Christiansen, 2003 UT App 348 ¶9 n.1, that courts should neither punish nor reward the divorcing parties. See Mark at ¶¶17-18. See also, English v. English, 565 P.2d 409, 411 (Utah 1977) (“Alimony is not intended as a penalty against the husband nor a reward to the wife.” (citation omitted)). Interestingly, in making their ruling the Mark majority did not even acknowledge, let alone expressly overrule, any prior Utah precedent on this issue, including Riley.

In a well-reasoned dissent, Judge Orme took issue with the majority’s ruling on this question. Among other things, Judge Orme stated:

In my opinion, the Legislature’s clear statement that fault may be considered in alimony determinations [ ] represents a policy judgment that courts should take to heart and endeavor to follow. The fact that this legislative
mandate is made in a broad and generalized way strongly suggests that the Legislature appreciates the multitude
of factual scenarios that arise in divorce cases, recognizes the broad equitable powers traditionally enjoyed by the
courts in doing justice in divorce proceedings on a case-by-case basis, and trusts the courts to flesh out the
alimony/fault concept in the course of adjudication of cases over time.

Mark at ¶25 (Orme, J. dissenting).

Following the Mark decision, different panels of the Utah Court of Appeals have addressed this issue. First, in Fairbanks v. Fairbanks, 2010 UT App 31 (not for official publication), then Presiding Judge Davis (with Thorne and McHugh, JJ. concurring) followed his prior opinion in Mark, see id. at 3d paragraph, but he also buttressed his ruling by further holding that even if it were appropriate to consider the wife’s fault, “the acts of which Husband complains do not satisfy a finding of [one of the traditional grounds for divorce],” and that it didn’t appear that the fault was entirely “one-sided.” Id. However, in her separate concurring opinion, Associate Presiding Judge McHugh, stated that she found Judge Orme’s dissent in Mark to be persuasive, and that she only concurred with the majority because she felt bound to follow the ruling in Mark under the principles of stare decisis announced by the Utah Supreme Court in State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (In most instances, subsequent panels of the Court of Appeals should follow the decisions of a prior panel.) See Fairbanks at single paragraph concurrence

Next, in Meyers v. Meyers, 2010 UT App 74, 231 P.3d 815, aff’d 2011 UT 65, Judge Voros pointed out the discrepancy between the rulings in Riley and Mark, but, because the Meyers decision didn’t require a resolution of that discrepancy, he left it for another day. See Meyers at ¶¶11-12, n.3 (Voros, J. with McHugh, A.P.J. and Orme, J. concurring).

Then, in Boyer v. Boyer, 2011 UT App 141, 259 P.3d 1063, Judge Davis seemed to back away a bit from his opinion in Mark when he affirmed the trial court’s decision not to consider the husband’s fault in awarding alimony. He did so, however, not on the basis that it was improper to consider fault, but on the basis that the statute does not require a trial court to consider the fault of the parties when determining alimony. See id. at ¶12 (Davis, P.J, with Voros and Christiansen, JJ concurring).

Then, in McPherson v. McPherson, 2011 UT App 382, Associate Presiding Judge McHugh (with Orme and Voros, JJ. concurring) almost entirely ignored the Mark case and reversed an alimony award that exceeded the husband’s ability to pay because “[a]lthough trial courts have significant discretion in making support determinations, and may impose disproportionately burdensome obligations on one party based upon findings relating to certain discretionary factors, including fault, the trial court did not make a finding on any such factor here.” Id. at ¶16. The McPherson opinion never actually cites to the Mark case, but does point to Judge Voros’ discussion in Meyers of a conflict between panels of the Utah Court of Appeals concerning the application of the fault factor. See id.

Most recently, in Farnsworth v. Farnsworth, 2012 UT App 282 (October 12, 2012), Judge Orme rendered a special concurring opinion wherein he agreed with the result reached in Judge Thorne’s majority opinion that the wife should be awarded a level of alimony that would technically permit her a standard of living higher than what she enjoyed during the marriage; but he did so for a different reason. See id. at ¶¶29-31. Judge Thorne, with Judge McHugh concurring in this part of his opinion, affirmed the trial court on the basis that it was fair and equitable, and not an abuse of discretion, for the trial court to award the wife alimony sufficient for her to live on a hypothetical horse property with a “habitable” single-family home “rather than the unsuitable housing situation that had been maintained by Husband” during the marriage. See id. at ¶¶12,15,16,18 & 26. In so doing, Judge Thorne essentially redefined the measure of the wife’s need for alimony, from being based on the standard of living she actually enjoyed during the marriage to being based on the standard of living she would have enjoyed during the marriage but for the husband’s diversion of marital resources to his hunting hobby instead of properly maintaining the marital home. See id. Judge Orme, however, called the majority’s logic “a bit of a stretch” and instead affirmed the trial court’s ruling on the alternative basis that the wife should be awarded a higher level of alimony due to the husband’s fault in dissipating a marital asset by failing to properly maintaining the marital home when he had the ability to do so, and in “reducing the parties’ standard of living to one that was artificially low.” Id. at ¶¶ 29-31, citing, inter alia, U.C.A. §30-3-5(8)(b) (“The court may consider the fault of the parties in determining alimony.”)

In light of the foregoing, it pretty clearly appears that the pendulum has begun to swing against Judge Davis’ opinions in Mark and Fairbanks, and for good reasons. First, Judge Davis’ opinions completely ignore more than a hundred years of precedent, from the Utah Supreme Court as well as from the Utah Court of Appeals, holding that it is proper to consider the fault of the parties when awarding alimony. Indeed, it is the Mark case that seems to depart from the principles of stare decisis. Second, Judge Davis was improperly persuaded by judge-made law stating that alimony decisions should not be punitive. Only the Constitution trumps legislative mandates. Judge-made law does not. Thus, where the statute clearly indicates that the parties may be rewarded or punished based on their relative fault when it comes to awarding alimony, the courts are not at liberty to simply ignore the legislature’s directive – especially where there is plenty of prior case law to provide guidance. Finally, Judge Davis’ argument that it is unnecessary to consider fault in the context of alimony because other parts of the divorce law, such as the division of marital property, can be used to compensate one spouse for the fault of the other, see Mark at ¶19, simply doesn’t ring true. There are plenty of cases where the primary, or only, asset belonging to an innocent spouse is his or her ability to produce future income. Under those circumstances, it is patently unjust and inequitable to require the innocent spouse to forfeit a significant portion of those future earnings to the spouse who was at fault for the divorce. To do so would make marriage a strict liability arrangement, and would only serve to discourage people from getting married in the first place — something seemingly counter to the public policy of a state that purports to value marriage and families.

However, until there is a clearer statement from the Utah Court of Appeals on this issue, the apparent conflict between different panels of the Utah Court of Appeals is resolved by the Utah Supreme Court, or the Utah legislature wades in as Judge Davis invited them to do in Mark, the issue of whether the relative fault of the parties should be considered in determining alimony will continue to be problematic at the trial court level. It is likely that many trial court judges will continue to decline to consider the issue of fault, not because they believe it to be inequitable in the context of the case before them, but because they believe they are not permitted to do so under Mark.

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JD Milliner