Fox v. Fox
515 P.3d 481
Utah Ct. App.2022Background
- Married in 1997; six children (four minors at trial). Ben is a neurosurgeon who earned as much as ~$110,000/month in St. George; DiAnn left full-time work during the marriage and was working part-time at low pay at trial.
- DiAnn filed for divorce in 2018; temporary orders included substantial child support and alimony payments pending trial.
- Before trial Ben moved to Florida and accepted a less demanding job paying about $80,000/month (still nearly $1M/year). DiAnn asserted Ben was voluntarily underemployed and asked the court to impute his prior St. George income.
- Two-day bench trial (Sept 2020). The court found joint legal custody, awarded DiAnn primary physical custody, used Ben’s Florida income (not St. George) for calculations, found Ben not voluntarily underemployed, set child support at $9,760/month, and alimony at $15,039/month for 2 years then $12,995/month for 22 years.
- The court assigned DiAnn sole responsibility for a $181,000 debt to her father but included a $2,500/month debt-service line in her alimony award (effectively paid by Ben). DiAnn appealed; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alimony: marital standard of living | Court failed to make a separate total-marital-spending finding and should have started by fixing the marital standard of living (DiAnn's expert said ~$70,000/month) | Trial court properly used the established three-step needs analysis (assess needs in light of marital standard, determine recipient's ability to pay, assess payor's ability) | Affirmed. Court followed the required three-step process and need determinations were supported; no separate aggregate-spending finding required |
| Alimony: inclusion of children’s extracurricular expenses | Extracurricular expenses should have been treated as child-related costs (increased child support) or awarded separately so they survive remarriage | Court permissibly included the $855 extracurricular line in DiAnn’s alimony calculation (it was part of her financial declaration) | Affirmed. Although such costs are generally part of child support, the court’s inclusion in alimony benefitted DiAnn and was within discretion |
| Division of marital debt (debt to DiAnn’s father) | It was an abuse to assign DiAnn sole responsibility for the $181,000 father debt and then fold the full $2,500/month into alimony | Court offset the debt assignment with property awards, car allocations, a $10,000 dissipation offset, and a $50,000 attorney-fee award; the alimony line effectively pays the debt service | Affirmed. Debt allocation was equitable when viewed with the overall property/debt distribution and alimony adjustments |
| Voluntary underemployment / imputation of income | Ben’s move to Florida reduced his pay; court should have found voluntary underemployment and imputed his prior St. George income for support calculations | Ben’s Florida job remained high-paying (near top percentiles), involved substantial hours, and reflected burnout/sustainability concerns; evidence supported not imputing income | Affirmed. Court’s finding that Ben was not voluntarily underemployed was supported by competent evidence and not an abuse of discretion |
Key Cases Cited
- Miner v. Miner, 496 P.3d 242 (Utah Ct. App. 2021) (articulates alimony purposes and need-based analysis in light of marital standard of living)
- Rule v. Rule, 402 P.3d 153 (Utah Ct. App. 2017) (discusses court's three-step approach to assessing needs and marital standard of living for alimony)
- Davis v. Davis, 263 P.3d 520 (Utah Ct. App. 2011) (school fees and extracurriculars are presumptively part of regular child support)
- Vanderzon v. Vanderzon, 402 P.3d 219 (Utah Ct. App. 2017) (income imputation must consider employment potential, history, prevailing earnings)
- Mullins v. Mullins, 370 P.3d 1283 (Utah Ct. App. 2016) (trial courts have broad discretion in equitable division of marital debt)