Tobler v. Tobler
2014 UT App 239
| Utah Ct. App. | 2014Background
- Russell (Husband) and Brittney Tobler (Wife) married in 2007; three children were born (one in 2010, twins in 2011). Wife filed for divorce in December 2010 while pregnant with the twins.
- Temporary orders (Sept. 2011) gave Wife sole custody, Husband statutory parent-time, Husband temporary child support of $2,033/month, Wife temporary spousal support $2,500/month, and required Husband to service most marital debt; sale of marital assets was restricted.
- Husband moved to bifurcate (enter an immediate divorce and reserve other issues); the district court denied bifurcation and later after a bench trial (Apr. 2012) entered a memorandum decision (June 2012) and final decree (Sept. 2012).
- The district court awarded Wife sole physical custody, joint legal custody, child support of $2,048/month (calculating Husband’s income by averaging three years of tax returns and adding $1,285/month rental income), and permanent alimony $2,000/month for four years and eight months (length equal to marriage at memorandum decision).
- Husband appealed, challenging denial of bifurcation, temporary orders, parent-time, child support (overtime and rental income deductions), alimony (amount/duration and treatment of 401(k) contributions and temporary alimony), property division, and sought reversal or remand on some items.
Issues
| Issue | Husband's Argument | Wife's Argument | Held |
|---|---|---|---|
| Denial of bifurcation | Bifurcation would resolve financial ‘‘bleeding wound,’’ avoid prejudice, and both parties wanted divorce | Trial court discretion to refuse bifurcation; concerns about delay and effects on benefits | Affirmed. Denial within court’s broad discretion; concerns about delay and health insurance legitimate. |
| Temporary relief (support/debt service/asset restraints) | Orders prejudiced Husband and held him "hostage" pending litigation | Temporary orders were within court’s discretion to maintain parties during litigation | Affirmed. Court has significant discretion over temporary support; Husband did not show abuse. |
| Parent-time schedule | Husband claimed parties agreed to additional time for oldest child | Wife opposed additional parent-time; court found oldest had trouble adjusting and combined schedules were best for all three children | Affirmed. Court acted within discretion to apply statutory schedule for youngest child to all three. |
| Child support — overtime income | Court improperly included overtime without specific findings that Husband "normally and consistently" worked >40 hrs/week | Wife produced tax returns/paystubs showing multi-year overtime; court averaged three years of income | Affirmed. Record shows regular overtime; three-year average supports inclusion. |
| Child support — rental income deductions | Court treated $1,285/month rent as gross income without deducting mortgage/taxes/insurance | Wife argued rental reflected net available; court stated it considered deductions but used $1,285 in calculation | Remand. Record unclear whether reasonable business expenses were deducted; court must make explicit findings and, if needed, recalculate support. |
| Alimony — 401(k) contributions treated as expense | Husband sought to deduct $1,269/paycheck 401(k) contributions as ability-to-pay; court treated them as voluntary savings | Wife awarded one-half of marital portion of 401(k); court found Husband’s post-separation contributions not a marital-pattern necessity | Affirmed. Court permissibly found contributions not a reasonable need or marital practice; no double-recovery error shown. |
| Alimony — duration and credit for temporary alimony | Husband argued temporary payments should count toward statutory duration limit so permanent award would not exceed marriage length | Wife sought full statutory-duration award; court declined to credit temporary support against permanent period | Affirmed. Husband failed to show statutory or persuasive authority that temporary alimony counts toward the statutory duration limit; court’s balancing not shown abusive. |
| Property division and bonus/401(k) valuation | Husband argued bonus was income or should be offset for wife’s alleged misappropriations; disputed 401(k) marital valuation | Wife defended district court’s valuations and division | Affirmed. Husband failed to marshal record citations and persuasion burden; court will not search record for unsupported claims. |
| Appellate attorney fees (sanctions) | N/A | Wife sought sanctions and fees under rule 33(a) or Utah Code §30-3-3 | Denied. Appeal not so egregious to warrant rule 33 sanctions; no fee award because no fee award below and Wife did not persuade court to exercise independent discretion to award appellate fees. |
Key Cases Cited
- Parker v. Parker, 996 P.2d 565 (Utah Ct. App. 2000) (trial courts have broad discretion to bifurcate)
- Stonehocker v. Stonehocker, 176 P.3d 476 (Utah Ct. App. 2008) (trial court has significant discretion in crafting temporary support)
- Andrus v. Andrus, 169 P.3d 754 (Utah Ct. App. 2007) (adequate factual findings required for support determinations)
- State v. Nielsen, 326 P.3d 645 (Utah 2014) (appellate marshaling is part of appellant’s persuasion burden; courts should address merits rather than dismiss on marshaling alone)
- Rappleye v. Rappleye, 855 P.2d 260 (Utah Ct. App. 1993) (marital estate generally valued at time of divorce decree)