Tobler v. Tobler

• Decision Date: 09 October 2014
• Docket Number: No. 20120912–CA.,20120912–CA.
• Citation: 2014 UT App 239,337 P.3d 296
• Court: Utah Court of Appeals
• Parties: Brittney TOBLER, Petitioner and Appellee, v. Russell Todd TOBLER, Respondent and Appellant.

337 P.3d 296

2014 UT App 239

Brittney TOBLER, Petitioner and Appellee

v.Russell Todd TOBLER, Respondent and Appellant.

No. 20120912–CA.

Court of Appeals of Utah.

Oct. 9, 2014.

J. Bryan Jackson, for Appellant.

Michael R. Labrum and Johanna Williams, for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judge STEPHEN L. ROTH and Senior Judge PAMELA T. GREENWOOD concurred.¹

Opinion

PEARCE, Judge:

¶ 1 Russell Todd Tobler (Husband) appeals from the district court's decree of divorce, findings of fact, and conclusions of law. We affirm the district court in all respects but one. We determine that, on the record before us, we cannot discern whether the district court properly calculated Husband's total income for child support purposes. We remand this matter for the entry of further findings regarding Husband's income and, if warranted by those findings, a recalculation of the child support award.

BACKGROUND

¶ 2 Husband and Brittney Tobler (Wife) married on October 4, 2007, in Manti, Utah. They had a daughter in April 2010. Wife was pregnant with twins when she filed for divorce on December 15, 2010. The twins, a boy and a girl, were born in February 2011.

¶ 3 Wife's divorce petition sought sole physical custody and joint legal custody of the children. She also sought alimony, the equitable division of the parties' real and personal property, and a one-half share in Husband's pension, profit-sharing plan, and other retirement benefits. Wife also requested that Husband be ordered to assume and pay all of the marital debts and obligations.

¶ 4 Along with her petition, Wife filed a motion for temporary relief, arguing that she was unable to work due to her pregnancy. She requested possession and use of the marital home, reasonable temporary child support and alimony, and an order that Husband service the marital debt during the pendency of the action. Husband agreed that child support was appropriate and that he should be responsible for the marital debt, but argued that his debt service should ultimately be factored into the equitable division of the parties' property. Husband also opposed any award of temporary alimony, arguing that Wife possessed four post-highschool degrees and was capable of working and supporting herself, particularly if Husband made the marital debt payments. Husband also opposed Wife's request for the marital home, arguing that she had already moved in with her mother.

¶ 5 In May 2011, while Wife's motion for temporary relief was pending, Husband filed a motion to bifurcate the proceedings, asking the district court to grant the parties an immediate divorce and reserve all other issues for future disposition. Husband argued that bifurcation would facilitate resolution of the financial obligations that were a “bleeding wound ” upon the marital estate, prevent Wife from holding Husband's life “hostage,” and give Husband “some tranquility in his life.” Wife initially failed to respond to the bifurcation motion, but when Husband filed a notice to submit for decision, Wife filed an opposition arguing that bifurcation would create an undue delay in the proceedings and increase their cost.

¶ 6 Following a September 2011 hearing, the court issued temporary orders granting Wife custody of the children, ordering Husband to pay child support of $2,033 per month, and awarding statutory parent-time to Husband. The court awarded Wife sole possession of the marital home, ordered Husband to maintain all marital debt except for the payments on a single vehicle, and awarded Wife temporary spousal support of $2,500 per month.

¶ 7 The district court denied Husband's bifurcation motion, determining that Husband had failed to demonstrate “a convenience or necessity issue that would be solved by bifurcation.” The court further explained that the bifurcation decision was a matter of the court's discretion and that, in its experience, bifurcation tended to increase delay. The court also expressed its concern that bifurcation might affect issues such as Wife's access to health insurance.

¶ 8 The district court held a bench trial in April 2012 and issued a memorandum decision in June 2012. The court awarded Wife sole physical custody of the children and awarded Husband and Wife joint legal custody. Wife was awarded child support of $2,048 per month based on Husband's monthly income of $12,867. The court calculated Husband's monthly income by averaging the income on his last three tax returns and adding $1,285 per month in rental income generated from a house Husband owned in St. George, Utah.

¶ 9 The district court also awarded Wife alimony of $2,000 per month for a period of time equal to the length of the marriage as of the date of the memorandum decision—four years and eight months. The district court rejected Wife's argument that alimony should be extended beyond the length of the marriage due to Wife's continuing educational needs but also rejected Husband's argument that the court should count Husband's temporary alimony payments against the total period of alimony awarded.

¶ 10 Husband objected to the memorandum decision, raising issues relating to the award of parent-time, the calculation of his income, the calculation and length of alimony, property division, and child support. The district court issued an order overruling most of Husband's objections on September 28, 2012.² The court issued its final decree of divorce that same day. The divorce decree largely tracked the relief granted in the prior memorandum decision and ordered Husband and Wife to each bear their own attorney fees and costs. Husband appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Husband argues that the district court erred when it denied his motion to bifurcate the proceedings and entered its temporary orders awarding spousal support to Wife during the pendency of the action, requiring Husband to service the bulk of the marital debt, and forbidding the sale of marital assets. “Trial courts have broad discretion to bifurcate trials, and we review the [district] court's bifurcation [decision] in this case for an abuse of that discretion.” Parker v. Parker, 2000 UT App 30, ¶ 5, 996 P.2d 565. The abuse of discretion standard also applies to our review of the district court's temporary orders. Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 39, 176 P.3d 476 (“The trial court has significant discretion in fashioning temporary support during the pendency of a divorce action.”).

¶ 12 Husband also raises multiple arguments challenging the various provisions of the final decree of divorce, including arguments relating to parent-time, child support, alimony, and property division. We review a district court's decisions in these areas for abuse of discretion. See Bell v. Bell, 2013 UT App 248, ¶ 11, 312 P.3d 951 (“We review a trial court's child support order for an abuse of discretion.” (citation and internal quotation marks omitted)); Boyer v. Boyer, 2011 UT App 141, ¶¶ 8–9, 259 P.3d 1063 (discussing our standards of review of property division and alimony issues); Childs v. Childs, 967 P.2d 942, 946 n. 2 (Utah Ct.App.1998) (“[W]e will not disturb the trial court's visitation determination absent a showing that the trial court abused its discretion.”).

ANALYSIS

I. Marshaling

¶ 13 As an initial matter, we address Wife's contention that Husband's claims on appeal must fail because they challenge the district court's factual findings and Husband has not marshaled the evidence in support of the challenged findings. Wife relies on prior cases—which were good law at the time the briefs in this matter were submitted—that treated an appellant's failure to marshal as a type of procedural default that precluded this court from even reaching the merits of arguments that were not supported by adequate marshaling.See, e.g., Chen v. Stewart, 2004 UT 82, ¶ 19, 100 P.3d 1177 (“If the evidence is inadequately marshaled, this court assumes that all findings are adequately supported by the evidence.”).

¶ 14 However, after Wife submitted her appellate brief, the Utah Supreme Court issued its decision in State v. Nielsen, 2014 UT 10, 326 P.3d 645. In Nielsen, the supreme court expressly “repudiate[d] the default notion of marshaling sometimes put forward in our cases and reaffirm[ed] the traditional principle of marshaling as a natural extension of an appellant's burden of persuasion.”

Id. ¶ 41.³ The supreme court explained that marshaling remains an important part of successfully challenging factual findings on appeal because “a party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” Id. ¶ 42. But the supreme court also instructed appellees and appellate courts alike to address the merits of an appellant's arguments without relying on marshaling as a “stand-alone basis” for rejecting claims on appeal. Id. ¶ 44. “The focus should be on the merits [of the arguments presented], not on some arguable deficiency in the appellant's duty of marshaling.” Id. ¶ 42.

¶ 15 In light of Nielsen, we decline Wife's invitation to summarily reject Husband's arguments for his alleged lack of marshaling. Rather, we address the merits of Husband's arguments and consider any marshaling deficiencies as part of our overall evaluation of whether Husband has met his burden of persuasion on appeal.

II. Bifurcation and Temporary Orders

¶ 16 Husband argues that the district court erred when it denied his motion to bifurcate the proceedings. Husband's motion asked the district court to terminate the parties' marriage by entering a decree of divorce while reserving all other issues for future resolution. The reasons Husband presented to the district court in support of his motion were that bifurcation would help to resolve the financial obligations that were a “bleeding wound ” upon the marital estate, prevent Wife from holding Husband's life “hostage,” and give Husband “some tranquility in...