Bjarnson v. Bjarnson

476 P.3d 145

Hugh Lynn BJARNSON, Appellant,

v.Jennifer Lou BJARNSON, Appellee.

No. 20190734-CA

Court of Appeals of Utah.

Filed October 16, 2020

Aaron R. Harris, Lehi, Attorney for Appellant

Rosemond G. Blakelock, Provo, and Megan P. Blakelock, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Jill M. Pohlman concurred.

Opinion

Orme, Judge:

¶1 Hugh Lynn Bjarnson and Jennifer Lou Bjarnson were married in 2008. In 2016, Hugh¹ filed for divorce, and the parties separated three months later. Following a bench trial, the district court entered a decree of divorce in 2019. The court's alimony determination is the sole point of contention on appeal.

¶2 Following the couple's separation, Jennifer moved in with her ailing mother, with whom she had also lived between the time she separated from a former husband and when she moved in with Hugh. She could not recall how long she had lived with her mother the first time but said that she had done so "briefly." Her mother's residence is a fully furnished three-level home, on five acres, in which Jennifer had her own bedroom. When she moved in following her separation from Hugh, she did not pay rent, although she provided care to her mother and testified that she paid her mother's water assessment. Jennifer asserted at trial that she could not afford to rent an apartment at that time and was "living there because [she had] nowhere else to live." It was entirely unclear how long she would remain there.²

¶3 The court determined that Jennifer was entitled to a monthly alimony award of $1,830, $1,000 of which accounted for her anticipated monthly housing expense, as reflected in her financial declaration. But because she was not obligated to pay rent while living with her mother, the court ordered Hugh to make alimony payments "for the length of the marriage in the amount of $830 per month until ... Jennifer secures her own housing," at which time the "alimony will increase to $1,830 per month." Hugh appeals.

¶4 Hugh's argument is limited to the prospective aspect of the district court's alimony award. He does not challenge the $830 monthly obligation currently payable. Instead, he contends that the court exceeded its discretion by ordering a prospective increase in his alimony obligation based upon an uncertain future event. We agree.

¶5 Although "trial courts have broad latitude in determining whether to award alimony and in setting the amount, and we will not lightly disturb a trial court's alimony ruling, ... we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set." Rule v. Rule , 2017 UT App 137, ¶ 11, 402 P.3d 153 (quotation simplified). See also State v. De La Rosa , 2019 UT App 110, ¶ 4, 445 P.3d 955 ("Trial courts do not have discretion to misapply the law.") (quotation simplified). We conclude that it was legal error for the district court to order a prospective increase in alimony based on a possible future event without first finding when—or even whether—such an event will occur. Instead, the court should have reserved the question of a possible change in alimony for a later petition to modify the alimony award should Jennifer's housing situation change.

¶6 "A prospective change in alimony alters the award to which the recipient spouse would otherwise be entitled based on the trial court's anticipation of a future event that will materially change the parties’ circumstances." Boyer v. Boyer , 2011 UT App 141, ¶ 15, 259 P.3d 1063. But because "the trial court will be better able to make an educated adjustment when and if [a possible future] event actually occurs," id. , "prospective changes to alimony are disfavored," Richardson v. Richardson , 2008 UT 57, ¶ 10, 201 P.3d 942. Indeed, they are appropriate "only as to future events that are ‘certain to occur within a known time frame.’ " MacDonald v. MacDonald , 2018 UT 48, ¶ 40, 430 P.3d 612 (quoting Richardson , 2008 UT 57, ¶ 10, 201 P.3d 942 ). Thus, in Richardson , a prospective change in alimony was appropriate where it was based on events that were certain to occur on specified dates. See 2008 UT 57, ¶¶ 10–11, 201 P.3d 942. In contrast, "a plan to retire, without actually retiring, would be insufficient to justify a prospective alimony reduction." Id. ¶ 10.

¶7 Here, the district court ordered Hugh to pay a prospective alimony increase of $1,000 per month when "Jennifer secures her own housing." Other than noting that Jennifer was "residing with her mother rent free right now," the court made no factual findings regarding her future housing. It did not find that it was "certain" that Jennifer would secure her own independent housing, much less that it would occur "within a known time frame." See id. Indeed, it could not have so found absent any indication that Jennifer was actively searching for independent housing, that she intended to move out of her mother's home within a certain timeframe, or that her current living arrangements would be short-lived. The amount of the appropriate increase was also necessarily speculative. The $1,000 may have been a solid estimate based on current conditions, but either high or low depending on when and whither she relocates—if she does. The prospective modification to the alimony award was thus improper under Richardson and its progeny, even though the court's desire for efficiency is understandable.

¶8 Jennifer argues that "[h]ousing was not considered by the court to be some ‘future’ event." Rather, she contends the court ordered the alimony increase with the goal of "restor[ing] the parties to the same standard of living that existed during the marriage," and because an independent living situation had been Jennifer's standard of living during her marriage, the court properly determined that she was entitled to monthly alimony payments in the amount of $1,830. In support of this argument, she relies on Sauer v. Sauer , 2017 UT App 114, 400 P.3d 1204, in which we affirmed the trial court's decision to base part of its alimony award on the payee's future expected housing expenses. See id. ¶ 10. In Sauer , the trial court based its decision on the facts that the payee "live[d] in a trailer on a friend's property" and that "it [was] unknown how long a person can survive on the good nature of a friend." Id. (quotation simplified). We noted that the court's "determination ma[de] conceptual sense" because "[i]n the aftermath of a separation, a party may temporarily return to his or her parents’ home, shelter with friends, or become homeless and thus incur no actual housing expenses." Id. ¶ 10 n.3. In such situations, "the court may consider what constitutes a reasonable rental or mortgage payment in the relevant area for housing similar to the housing previously shared by the parties." Id.

¶9 Although ...