Fox v. Fox, 2022 UT App 88 (Filed July 14, 2022)

Facts:  The parties married in 1997 and wife filed for divorce in 2018.  The parties had 6 children, 4 of whom were minors at the time of the divorce trial.  The parties lived in St. George and wife primarily cared for the child and husband worked as a neurosurgeon and by working 80-100 hours per week was making well above $1M per year or $110k per month. By the time of trial, husband has relocated to Florida and was working again as a neurosurgeon,50-60 hours per week, and earning approximately $1M per year or $80k per month. Husband and an expert testified that he was burned out physically and emotionally and that he could not keep up the long hours he used to do in St. George.  The expert testified that even his “reduced” salary of $80k per month was above the 90^th percentile of all neurosurgeons in the nation.  Wife argued that he was voluntarily underemployed. The trial court found that he was not and based child support and alimony on husband’s income of $80k per month, awarding child support of almost $10k per month, and alimony of $15k per month. Wife appealed claiming that the higher income for husband should have been used and thus she was entitled to more child support and alimony.

Alimony Award: In addressing the amount of alimony the appeals court found that the trial court followed this three-step process in this case. It made twenty-three separate line-item findings regarding [Wife]’s reasonable monthly expenses, using her requested amounts as a starting point, and it adjusted four of the line items downward and three of them upward. The court determined that [Wife]’s reasonable monthly needs, as adjusted, amounted to $25,424.61. And on appeal, [Wife] does not take issue with any of the twenty-three specific line-item findings [of her monthly expenses]. That is, she does not assert that any of those particular findings—for instance, her housing expenses, or her automobile expenses—are not in harmony with the marital standard of living.  The court also made findings regarding [Wife]’s ability to earn income… The court then subtracted her income and the child support payments from her needs, and determined that [Wife] would have a monthly shortfall of $15,039 per month… Finally, the court assessed whether [Husband] had the ability to pay [Wife]’s demonstrated shortfall, and determined that he did, even using [Husband]’s Florida income rather than his St. George income, and even after paying child support and meeting his own reasonable monthly needs. [Wife]’s only complaint about this analysis is that the trial court erred by using [Husband]’s Florida income for the basis of its computation, as opposed to his St. George income. But [Wife] of course does not quibble with the court’s ultimate conclusion that [Husband] can meet every dollar of her demonstrated shortfall.  [Referring to the well-settled principle that the maximum allowable alimony award is the shortfall between the alimony recipient’s income and the reasonable monthly expenses.] We perceive no error in the procedure the trial court employed in computing [Wife]’s alimony award. As noted, the court appropriately went through the three-step process required by applicable law. If [Wife] believed that the court inappropriately assessed any of her individual expenses, as measured in light of the marital standard of living, she had every opportunity to challenge any of the specific line-item calculations the court relied on in determining her monthly needs. See Miner, 2021 UT App 77, ¶¶ 20–63 (evaluating an appellant’s challenges to eleven separate line items in a trial court’s calculation of a recipient spouse’s needs). But she does not challenge any of them. 

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