Vanderzon v. Vanderzon

Decision Date17 August 2017
Docket NumberNo. 20140946-CA.,20140946-CA.
Citation402 P.3d 219
Parties Heidi Kirsten VANDERZON, Appellant, v. John Matthias VANDERZON, Appellee.
CourtUtah Court of Appeals

Diana J. Huntsman, Sherri L. Walton, Jason T. Schow, Michael D. Zimmerman, Julie J. Nelson, and Clemens A. Landau, Salt Lake City, Attorneys for Appellant.

David S. Dolowitz, James M. Hunnicutt, and Shane A. Marx, Salt Lake City, Attorneys for Appellee.

Judge Stephen L. Roth authored this Opinion, in which Judge Jill M. Pohlman concurred.1 Judge Gregory K. Orme concurred in the result.


ROTH, Judge:

¶ 1 Heidi Kirsten Vanderzon and John Matthias Vanderzon2 divorced by bifurcated decree in March 2013. Several issues were reserved for trial following entry of the decree, including child custody, alimony, and attorney fees. In September 2014, the trial court issued its final decree of divorce, which addressed all of the remaining issues. Heidi appeals from that decree, challenging the court's orders regarding custody, alimony, and attorney fees. We affirm in part and vacate in part and remand.


¶ 2 Heidi and John married in Virginia in 1997, where they continued to live for many years. In 2008, Heidi moved with their three children to Park City, Utah, while John remained in Virginia. The couple formally separated two years later, and Heidi filed for divorce in Utah in January 2011.

¶ 3 Following the entry of the bifurcated decree of divorce, a bench trial was held during which the court heard evidence related to the issues remaining between the parties, including child custody, alimony, and attorney fees. On September 5, 2014, the court issued its findings of fact and conclusions of law as well as its final decree of divorce, which resolved all remaining issues.


¶ 4 The court awarded the parties joint legal custody of the children and established a joint physical custody arrangement under which John would have substantial parent time but Heidi would remain the children's primary caregiver. At the time of the trial in 2014, the parties had been living separately for over five years. Heidi rented a home in Park City, Utah, where she cared for all three of the parties' minor children, who attended school nearby. John continued to live in Virginia, working as he had for many years in the Washington, D.C. area. After Heidi moved to Park City, John traveled to Utah on weekends to see his family. However, once the divorce proceedings began, John's access to his children and the parties' long-distance co-parenting efforts became a significant source of conflict.

¶ 5 A custody evaluator, Dr. Valerie Hale, was appointed to address the custody issues in the case. Her evaluation included "numerous interviews with Heidi and John" and their children, as well as on-site home visits in both Utah and Virginia. She prepared a "detailed and exhaustive report" and testified at trial. Dr. Hale recommended "that the children go back to Virginia." She stated that the "distance between the parents hasn't been working for a variety of reasons on a variety of levels" and noted that the children "didn't express an intense attachment ... to Park City," but had instead communicated "a temporary feeling." She emphasized the importance of providing the children with as stable and complete a relationship as possible with each of their parents, which would include ready access to both John and Heidi, along with proximity to relatives, most of whom lived in the eastern United States. She stated that it was particularly important that the children "get to have access to Dad and Mom ... in a spontaneous way, ... not according to a strict schedule but in a way that lets them approximate as naturally as they can the need to exploit each parent."

¶ 6 When asked how far divorced parents could live from each other and still manage the kind of parental interaction she recommended, Dr. Hale cited research that indicated that "if parents live more than 75 miles apart, ... the non-residential parent participation ... drops off precipitously," and that "parents being within 45 minutes' drive" is ideal, because it allows for "natural flexibility" in parenting. Noting that Virginia is "traffic-y," Dr. Hale ultimately recommended that Heidi should live within forty-five minutes of John if she relocated to northern Virginia.

¶ 7 In reaching its custody determination, the court "relie[d] heavily" on Dr. Hale and found "her written report and [testimony] at trial to be thoughtful, thorough, and sound." The court decided that a joint physical custody arrangement was in the best interests of the children, with Heidi as the primary caregiver. The court also determined that it was in the children's best interests to relocate with Heidi to Virginia where John resided. For most of the divorce proceeding, Heidi had indicated that she was not willing to move back to Virginia, but on the second day of trial she told the judge that if he ultimately ordered the children to be relocated to Virginia, she would "follow the children and be with the children." In its final decree, the court noted that Heidi had "voluntarily agreed to relocate to Virginia so that she can continue to act as the primary caregiver for the children."

¶ 8 The court included in its findings and its final decree certain provisions designed to facilitate the children's transition from Utah to Virginia. The court emphasized that the transition "must be handled carefully and responsibly and with as little disruption to the children as is possible," and to that end the decree ordered the parties to "develop a transition plan" with the assistance of a transition specialist. The decree required the parties to complete the children's move to Virginia "no later than January 1, 2015," but, anticipating that Heidi might not be ready to move immediately from Park City, the court made provisions for their temporary custody with John during the period between the children's relocation and Heidi's own move to Virginia. In connection with these transitional arrangements, the court made an effort to ensure that Heidi would move close enough to John to implement the custody evaluator's recommendation that the location of the children's residence facilitate spontaneous interactions with both parents: "If Heidi is not residing in Virginia and within 25 miles of John's residence at the time the children move, then the children will live with John and he will act as the primary caregiver ... until Heidi relocates." Then, "[u]pon Heidi's relocation to Virginia within 25 miles of John's residence, the children will live with her, [and] she will resume her role as primary caregiver."


¶ 9 The trial court ordered John to pay Heidi $6,400 per month in alimony. The court noted that it was required to consider several factors in making its alimony award, including Heidi's "financial condition and needs," Heidi's "earning capacity or ability to produce income," and John's "ability ... to provide support." See Utah Code Ann. § 30-3-5(8)(a)(i)-(iii) (LexisNexis 2013). The court found that Heidi had monthly expenses of $14,758, which included $4,000 of child-related expenses that it noted were "essentially offset" by the child support award of $3,613. In deciding the appropriate amount of income to impute to Heidi, the court relied on the opinions of a vocational expert. Heidi had not worked outside the home during the marriage, but before marrying, she had obtained bachelor's degrees in History and Russian, with a minor in Soviet Studies, and she had worked as a Russian translator at a law firm from 1990 to 1997. The expert opined that, based on Heidi's college degrees and the results of vocational testing, "the best option [ ] for [Heidi] would be public relations specialist," which had an entry-level salary of about $34,150 yearly, or $2,846 per month before taxes and other deductions. The court ultimately imputed income in that amount to Heidi. After subtracting Heidi's gross imputed income and the monthly child support payments from her expenses, the court concluded that Heidi had $8,300 of unmet need.

¶ 10 The court then determined that John's monthly gross income was $26,667 per month, yielding a net income (i.e., after taxes and other deductions) of $19,733 per month. The court then deducted the $3,613 child support payment, which left John with $16,120 to pay his own expenses and support Heidi. The court then subtracted John's monthly expenses of $10,000, leaving surplus in the amount of $6,120, which it noted "is close but ultimately insufficient to satisfy ... Heidi's unmet need" of $8,300. In arriving at its ultimate alimony determination, however, the court turned to a report and separate calculations prepared by John's alimony expert. The report assumed that the parties would enjoy equal custody of the children. As a result, its stated goal was to equalize the parties' standards of living essentially by equalizing the parties' budgets, reasoning that both parties would need an equal monthly cash flow to provide an equal standard of living for themselves and their children. Based on a number of calculations not easily reconciled with the trial court's own findings, the report indicated, as the court noted, that "a total monthly support obligation (alimony plus child support) of $10,000 would ... result in a net, after tax income to [Heidi] of $10,240" and to John "of $10,239." The court concluded that by using the report's total support calculation, "both parties' after tax cash flow would essentially be identical" and "would leave both parties with an essentially identical shortfall in the amounts needed to meet their monthly needs." As a result, the court adopted the report's $10,000 "monthly support obligation" figure, and, after deducting John's child support payment, ordered John to pay the rounded-up balance of $6,400 as alimony to Heidi for a period equal to the length of the marriage.

Attorney Fees

¶ 11 After the trial concluded, the court issued a May...

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