Eberhard v. Eberhard
449 P.3d 202
Utah Ct. App.2019Background
- Todd and Lori Eberhard divorced in 2003 after a long marriage; the stipulated decree ordered Todd to pay $4,200/month alimony and provided that spousal support would be reviewed upon Todd’s retirement.
- Todd retired and sought modification (termination or reduction) of alimony when pension payments began; Lori (no prior work experience pre-divorce) was working part-time and received a share of Todd’s pension.
- At trial the district court denied immediate modification, ordered Todd to continue $4,200/month for three years, then permitted a reduction equal to Lori’s Social Security when she reached full retirement age (66).
- The court found Lori had ongoing debt and monthly expenses that left a shortfall historically; it found Todd had substantial retirement assets and could, in the court’s view, pay the alimony.
- The district court ordered Todd to pay half of Lori’s attorney fees for the modification proceeding; Todd appealed challenging the alimony findings, treatment of Lori’s income sources, findings on needs and payor ability, and the attorney-fee award.
Issues
| Issue | Todd’s Argument | Lori’s Argument | Held |
|---|---|---|---|
| Whether alimony should be reduced/terminated upon Todd’s retirement and pension distributions | Retirement/pension income justifies reducing or ending alimony | Alimony should continue because Lori’s needs were unmet and pension/Social Security timing matters | Court denied immediate reduction; continued $4,200/month for three years, then allowed offset by Lori’s Social Security when she reaches full retirement age |
| Whether Lori’s potential Social Security or unearned retirement account income should be counted as current income | Include SS and earnings from retirement accounts as income to reduce alimony | Court should not force Lori to take early reduced SS or to draw down retirement assets; those are not required income sources | Court acted within discretion in excluding early Social Security and unearned retirement-account income from Lori’s current income calculation |
| Whether district court improperly based award on needs that arose after the decree (Utah Code § 30-3-5(8)(i)(ii)) | Court improperly considered needs not existing at divorce without finding extenuating circumstances | Court found Lori’s present needs were the same basic needs as at divorce and that the original award never met those needs | Court found no reliance on new needs; § 30-3-5(8)(i)(ii) not violated because expenses were basic and existed at divorce |
| Adequacy of findings on Lori’s needs, Todd’s ability to pay, and award of attorney fees under § 30-3-3 | Findings insufficient; court failed to explain calculations and did not properly account for payor shortfall | Court relied on financial declarations and assets to justify award and fee split | Affirmed in many respects but remanded for more detailed findings as to Lori’s actual monthly needs, Todd’s ability to pay (drawing from retirement without depleting principal), and reconsideration of attorney fees if figures change |
Key Cases Cited
- Jones v. Jones, 700 P.2d 1072 (Utah 1985) (source of the Jones factors for alimony)
- Griffith v. Griffith, 985 P.2d 255 (Utah 1999) (district courts have broad discretion in assessing spouse income)
- Crompton v. Crompton, 888 P.2d 686 (Utah Ct. App. 1994) (courts may consider all income sources but have discretion how to treat them)
- Busche v. Busche, 272 P.3d 748 (Utah Ct. App. 2012) (flexibility for trial courts to consider various income sources)
- Hansen v. Hansen, 325 P.3d 864 (Utah Ct. App. 2014) (courts should consider marital standard of living when determining alimony)
- Bond v. Bond, 420 P.3d 53 (Utah Ct. App. 2018) (testimony can support trial-court factual findings)