McPherson v. McPherson, 2013 UT App 302

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Coverage

Facts

The Original Award and First Appeal

• In August 2010, the trial court ordered Husband to pay Wife $800 per month in alimony.
• In the first appeal, the court of appeals held that the trial court erred by basing alimony on Husband’s gross income without accounting for his tax liability and by failing to address whether his income was sufficient to make the payments.
• The court observed that the record evidence tended to show Husband’s reasonable expenses plus child support and alimony exceeded his net monthly income by more than $1,500.
• The court remanded for recalculation considering Husband’s tax obligations and actual ability to pay, acknowledged the trial court’s discretion to make other adjustments to equalize standards of living or to explain a disproportionate allocation of the shortfall, and stated in footnote 4 that it did not intend to preclude the trial court from considering whatever evidence it deemed appropriate on remand.

Proceedings on Remand

• On remand, the parties agreed that no new evidence was needed to recalculate alimony.
• The trial court found that the appellate opinion had caused the parties to “differ greatly” about its meaning and had caused the trial court “to struggle as well.” It explained that it had not originally found net income because of a “paucity of evidence” on the point.
• The trial court stated that the court of appeals had “seemingly” found Husband’s net income to be $3,270 per month based on a revised financial declaration in the record. Although the trial court believed then and continued to believe that the declaration did not accurately reflect Husband’s tax liability, it concluded that it “must now accept that figure as determined on appeal.”
• The trial court acknowledged footnote 4 but reasoned that, because no new tax-liability evidence was presented, declining to find net income would “run afoul” of the appellate mandate.

The Amended Decree

• Using the $3,270 figure, the trial court reduced Wife’s alimony by $500 per month and entered a judgment against her of nearly $27,000 for alimony overpayment, permitting the overpayment to be offset against the reduced alimony.
• The trial court did so even though Wife was of very limited means and Husband’s reduced income was, in the trial court’s words, due only to his own “irresponsible behavior.” The trial court indicated more than once that it was unhappy with the result but felt compelled by the prior opinion.
• Wife appealed.

Issues of the Case

• Alimony – Income Determination

  1. Scope of the Appellate Mandate and Net-Income Determination

  Claim on Appeal: Wife argued that the trial court erred in reducing her alimony by $500 per month based on its belief that the court of appeals had already determined Husband’s net income to be $3,270 per month.

  Holding: — Reversed and Remanded. The prior opinion’s references to record evidence of Husband’s net income were intended to guide and focus the remand, not to make findings of fact, limit the trial court’s discretion, or dictate a result; the trial court must reconsider alimony using the best evidence available to it, or account for the absence of reliable evidence.

  Statutory Authority: No Utah Code section cited.

  Standard of Review:

  The decision does not articulate a standard of review. The court treated the trial court’s reading of the prior remand instructions as a misunderstanding of the mandate and corrected it directly, reaffirming that fact-finding belongs to the trial court (American Fork City v. Singleton, 2002 UT App 331, ¶ 5; Bailey v. Bayles, 2002 UT 58, ¶ 19).

  Controlling Cases:

  • McPherson v. McPherson, 2011 UT App 382, ¶¶ 14–16 & n.4, 265 P.3d 839 (prior appeal requiring net-income and ability-to-pay analysis; footnote 4 preserving trial court’s discretion to consider evidence on remand).
  • Bailey v. Bayles, 2002 UT 58, ¶ 19, 52 P.3d 1158 (appellate courts may not weigh evidence or make their own findings of fact).
  • American Fork City v. Singleton, 2002 UT App 331, ¶ 5, 57 P.3d 1124 (trial courts have primary responsibility for factual determinations).
  • Halladay v. Cluff, 739 P.2d 643, 645 n.5 (Utah Ct. App. 1987) (trial courts on remand are better positioned to evaluate the case’s nuances and undisclosed pitfalls).

  Why It Matters: An appellate court’s discussion of record evidence in explaining why a remand is necessary is not a finding of fact and does not bind the trial court. The decision restores the trial court’s authority to determine net income—or to account for the lack of reliable evidence—on remand, and it signals that a trial court that expressly disagrees with a figure should not adopt it solely out of deference to perceived appellate direction.

• Alimony — Overpayment and Credits

  2. Alimony Overpayment Judgment and Offset

  Claim on Appeal: Wife challenged the judgment of nearly $27,000 against her for alimony overpayment and the order permitting Husband to offset the overpayment against the reduced alimony.

  Holding: — Vacated with the amended decree. Because the court reversed the amended decree and remanded for reconsideration of the alimony award, the overpayment judgment and offset—both derived from the recalculated alimony—fell with it. The court did not separately analyze them.

  Statutory Authority: No Utah Code section cited.

  Why It Matters: Retroactive overpayment judgments and offsets are derivative of the underlying alimony calculation; when that calculation is reversed, they cannot stand. The decision highlights the real-world consequences of a misread remand: a recipient spouse of very limited means faced a substantial judgment based on a figure the trial court itself doubted.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

Litigation and Appellate Strategy

Reversal Based on Legal Error vs. Factual Error

• The reversal rests on legal error: the trial court misunderstood the effect of the prior appellate opinion and therefore failed to exercise its own fact-finding discretion.
• The court of appeals expressly declined to dictate any particular result, emphasizing that its earlier statements were meant only to guide and focus the remand.

The Cost of a Second Appeal

• The case returned to the trial court a second time, with alimony still unresolved more than three years after the original award—illustrating how ambiguity about the mandate can prolong litigation.
• The parties’ joint decision on remand not to present new evidence contributed to the problem; the trial court had no fresh tax-liability evidence to rely on.

Reversal Predictor

• Trial court states that it feels compelled by an appellate opinion to reach a result it disagrees with.
• Trial court adopts a figure discussed in an appellate opinion as if it were a binding finding of fact.
• Remand instructions or footnotes expressly preserve the trial court’s discretion to consider evidence.
• Trial court expresses doubt about the reliability of the evidence underlying the figure it adopts.
• The result imposes a substantial retroactive burden on a party of limited means.

Mandatory Factor Checklist

No statutory factors were analyzed in this decision. On remand, consistent with the first McPherson opinion, the trial court must address:

• The payor’s net income, accounting for actual tax liability, or the effect of the absence of reliable evidence on that point.
• The payor’s actual ability to pay the alimony and child support ordered.
• Any adjustment to equalize the parties’ standards of living, or an explanation for allocating a disproportionate share of the shortfall to one party.

Signal Cluster (High-Risk Appeal Profile)

An appeal is most viable under McPherson where (1) there was a prior appellate remand; (2) the prior opinion discussed specific record figures while reserving the trial court’s discretion; (3) the trial court expressly adopted those figures as binding despite its own doubts; and (4) the result produced a significant financial reversal for one party. When these combine, the appellate court is likely to reverse and restore the trial court’s fact-finding discretion.

Strategy Insight

McPherson shows that a trial court’s expressed reluctance can itself be the appellate argument. By highlighting that the trial court ruled against its own assessment of the evidence because it believed the appellate court had already decided the issue, the appellant framed the appeal as a misunderstanding of the mandate—a legal error—rather than a challenge to the alimony calculation. That framing avoided the deference normally given to alimony determinations and secured a remand with the trial court’s discretion fully restored.

Insights

Utah-Only Jurisprudence

• The decision relies entirely on Utah authority: the court’s own prior opinion in the case, two Utah Court of Appeals decisions, one Utah Supreme Court decision, and a Utah judicial administration rule. No out-of-state authority is cited.
• The opinion is notable for its candor: the court acknowledges that it was unaware of the evidentiary problems the trial court disclosed only on remand.

Doctrinal Anchors (Utah Supreme Court)

• Bailey v. Bayles, 2002 UT 58, ¶ 19 — Established that it is inappropriate for an appellate court to weigh evidence and make its own findings of fact. Role: the core principle explaining why the prior opinion could not have fixed Husband’s net income.
• No other Utah Supreme Court authority is cited; the remaining support comes from Utah Court of Appeals decisions on the trial court’s fact-finding role.

The Most Important Holding

When an appellate court references record evidence to explain why a trial court’s analysis was inadequate, it is not making a finding of fact. On remand, the trial court retains full responsibility for determining the facts—including whether the evidence is reliable enough to establish a figure such as net income—and must not treat appellate discussion of the evidence as a binding determination.

Reading Remand Instructions

• Remand instructions should be read as a whole, including footnotes reserving the trial court’s discretion to consider additional evidence.
• Net income is “always preferred” in calculating alimony, but the trial court may consider the best evidence available, or the effect of a lack of evidence, in reaching an appropriate award.
• A trial court uncertain about the scope of a mandate should make independent findings and explain them rather than adopting a figure it doubts.

Practitioner Takeaways

Trial Lawyers:

• On remand, do not assume the record is fixed. Where the appellate court invites the trial court to consider whatever evidence it deems appropriate, present updated evidence on the remanded issue (here, actual tax liability and net income).
• If the trial court expresses uncertainty about the meaning of the appellate opinion, brief the scope of the mandate directly, including any footnotes preserving discretion.
• Build a clear record of net income at the original trial, including tax returns and credible tax-liability evidence, to avoid a “paucity of evidence” problem.

Appellate Lawyers:

• When the trial court states that it is ruling against its own judgment because of perceived appellate direction, that statement is a strong appellate signal.
• Distinguish between an appellate court’s holding (the legal error) and its discussion of record evidence (which is not a finding of fact).
• In the first appeal, consider requesting clarification of the remand scope where the record on the dispositive figure is thin.

Recipient Spouses:

• A favorable result for the payor on appeal can lead to retroactive overpayment judgments and offsets against future alimony; counsel should evaluate this exposure early.