Beverlin v. Beverlin

2025 UT App 72

THE UTAH COURT OF APPEALS

STEVEN K. BEVERLIN,
Appellee,
v.
GAIL W. BEVERLIN,
Appellant.

Opinion
No. 20230597-CA
Filed May 22, 2025

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 214900271

Charles R. Ahlstrom, Attorney for Appellant
Julie J. Nelson, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.

OLIVER, Judge:

¶1 After a thirty-three-year marriage, Steven K. Beverlin filed
for divorce from his wife, Gail W. Beverlin. The parties eventually
went to trial because they were unable to resolve the terms of their
divorce. Gail 1 appeals the district court’s divorce decree, alleging
the court abused its discretion in both its alimony determination
and property division, and should have awarded her attorney
fees. For the reasons set forth below, we affirm.

1. Because the parties share the same last name, we refer to them
by their first names for clarity, with no disrespect intended.
Beverlin v. Beverlin

BACKGROUND

¶2 Steven and Gail met while they were students in the same
master’s degree program. They married in 1988 after graduation
and had four children. They separated in September 2020, and
Steven filed for divorce in February 2021.

¶3 During the marriage, Steven worked for the federal
government and had a more stable and lucrative employment
history than Gail, who devoted considerable time to raising the
parties’ children and caring for her elderly mother. When the
parties separated, Steven worked for the U.S. Forest Service and
earned approximately $144,000 per year, Gail worked for the
Internal Revenue Service (the IRS) and earned an annual salary of
$26,125. Steven applied to retire from his job in April 2021 and
officially retired on May 1, 2021, at the age of fifty-eight. When she
learned Steven planned to retire, Gail sought to enjoin him from
retiring, but the district court denied her request because it did
not “find irreparable harm.” However, the court noted that it
could “impute [Steven’s] full time salary if the court finds he is
voluntarily unemployed or underemployed.” After retiring,
Steven received a pension from the federal government with a net
amount of approximately $4,000 per month.

¶4 The case came before the district court for a trial in
September 2022. By then Gail’s annual income had significantly
increased because she had been able to work substantial amounts
of overtime with the IRS due to a COVID-19 backlog. Gail
submitted a financial declaration to the court that indicated she
had a net monthly income of $3,376, including overtime pay. The
district court adopted the number in Gail’s financial declaration
as Gail’s income, including the overtime pay.2

2. Although Steven called an expert witness to testify that Gail
could earn more, the district court rejected the expert’s theory
(continued…)

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¶5 Gail requested that the district court impute $144,000 in
income to Steven, the same amount he made before he retired. The
court determined that Steven was underemployed because he
retired when he was fifty-eight years old, and it found the timing
of his retirement problematic, but the court ultimately declined to
impute Steven’s full preretirement salary because Gail presented
no evidence to the court that Steven could still earn his
preretirement salary. Instead, the court imputed an annual salary
of $60,000 and estimated that this salary would net Steven $3,750
per month. This salary imputation was added to the amount
Steven received from his pension—he received $2,000 of the
$4,000, with Gail receiving the rest, see infra ¶ 7—making his net
monthly income $5,750 per month.

¶6 The district court also adopted the monthly expenses that
Gail presented in the amount of $5,749 and found that she had a
monthly shortfall of $373 because her net monthly income was
$5,376, with $3,376 coming from her wages from her employment
with the IRS and $2,000 coming from Steven’s pension. After
factoring in Steven’s fault for the divorce and that Gail’s gas and
travel expenses may rise, the district court awarded Gail $500 per
month in alimony.

¶7 Because both Gail and Steven had been federal employees,
they each had federal retirement accounts. The district court
awarded Gail and Steven their equitable share of the other’s

because Gail lacked essential training required to be employed in
the field of her education and her age made it difficult for her to
obtain such training.

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pension, 3 and their respective Thrift Savings Plans 4 (TSP) were
divided equally, according to their balances on September 27,
2022.

¶8 The district court awarded both Gail and Steven a one-half
interest in the marital home. Gail was allowed to remain in the
home if she was able to refinance it within ninety days and pay
Steven his share of the equity, or she could sell the home and
divide the equity with Steven minus several offsets that he owed
to her.

¶9 The district court awarded neither party attorney fees,
finding that both parties had sufficient ability to pay their own
attorney fees. The divorce decree was entered on December 13,
2022.

¶10 In January 2023, Gail filed a motion to amend the district
court’s findings of fact under rule 52 of the Utah Rules of Civil
Procedure. The court denied the motion in its entirety and
awarded Steven partial attorney fees for having to respond to it.
Gail filed an appeal on July 10, 2023.

3. The district court calculated Gail’s and Steven’s shares of each
other’s pensions by using the Woodward formula, which “grants a
spouse one-half of the portion of the retirement benefits
represented by the number of years of the marriage divided by
the number of years of the acquiring spouse’s employment.”
Janson v. Janson, 2019 UT App 106, ¶ 15 n.4, 448 P.3d 1 (citing
Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982)) (cleaned
up).

4. “A thrift savings plan is a defined contribution plan, similar to
a 401(k) plan, for federal employees and members of the
uniformed services.” Kidd v. Kidd, 2014 UT App 26, ¶ 2 n.2, 321
P.3d 200 (cleaned up).

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¶11 Meanwhile, Steven filed a motion to enforce the divorce
decree on June 20, 2023. The motion dealt with Gail’s failure to list
the marital home for sale in a timely manner, her failure to return
all the personal property allocated to Steven, and the language of
the proposed order to effectuate the division of the parties’ TSP.
Gail filed a countermotion to enforce the divorce decree on
October 4, 2023. In her countermotion, Gail asserted that Steven
should be held in contempt “[f]or not removing Gail’s name from
the loan obligation on the Toyota Tundra, which was awarded to
[Steven] as part of the property settlement.” A commissioner
ruled on the motions to enforce on November 8, 2023. By the time
the commissioner issued a ruling, most of the issues involving the
sale of the marital home and exchange of personal property were
moot or otherwise resolved. The commissioner did, however,
deny Gail’s request to “hold [Steven] in contempt for not
removing [Gail’s] name from the loan obligation on the parties’
Toyota Tundra . . . because [Steven] was not ordered to do so.”
The commissioner’s rulings were later countersigned by the
district court.

¶12 The district court also heard argument pertaining to the
division of the TSP on January 25, 2024, and later issued a separate
order on the issue. Gail did not file an amended notice of appeal
to include the denial of her motion to enforce or the separate order
involving the TSP.

ISSUES AND STANDARDS OF REVIEW

¶13 Gail raises several issues on appeal. First, Gail
challenges the district court’s alimony calculation. “District
courts have considerable discretion in determining alimony
and determinations of alimony will be upheld on appeal unless a
clear and prejudicial abuse of discretion is demonstrated.”
Burggraaf v. Burggraaf, 2019 UT App 195, ¶ 26, 455 P.3d 1071
(cleaned up).

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¶14 Next, Gail asserts the district court should have awarded
her a greater share of the marital estate. District courts have wide
latitude in dividing marital property, and we do not lightly
disturb orders distributing property. See Merrill v. Merrill, 2024 UT
App 125, ¶ 31, 556 P.3d 1070. “Therefore, we review property
distribution . . . under an abuse of discretion standard.” Id.
(cleaned up).

¶15 Gail also asserts the district court should have awarded her
attorney fees. In this context, “both the decision to award attorney
fees and the amount of such fees are within the sound discretion
of the [district] court.” Taft v. Taft, 2016 UT App 135, ¶ 86, 379 P.3d
890 (cleaned up). Appellate courts disturb the district court’s
attorney fee determination only if the court abused its discretion.
Id.

ANALYSIS

I. Alimony

¶16 Gail raises two challenges to the district court’s alimony
award, both of which involve the district court’s income
determinations. First, Gail argues the district court improperly
determined her income because it included her overtime
wages as part of her total income. Second, Gail argues the
district court abused its discretion when it imputed Steven
$60,000 in income rather than the $144,000 he made prior to his
retirement.

A. Inclusion of Gail’s Overtime Income

¶17 In Utah, “[i]ncome from earned income sources”
considered for alimony purposes is typically “limited to the
equivalent of one full-time 40-hour job.” Utah Code § 81-6-

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203(2)(b). 5 However, overtime income can be considered “[i]f and
only if during the time before the original support order, the
[spouse] normally and consistently worked more than 40 hours.”
Id. § 81-6-203(2)(c). When “there is evidence suggesting a long-
term pattern of a . . . spouse[] working extended hours, a [district]
court does not abuse its discretion by concluding that the . . .
spouse’s[] income . . . should be calculated with the historically
longer workweek in mind.” Miner v. Miner, 2021 UT App 77, ¶ 83,
496 P.3d 242.

¶18 Here, Gail argues that although she has been working
overtime and such overtime is reflected on her financial
declaration and her tax returns, her overtime is temporary in
nature and exists only due to a COVID-19 backlog. However,
Gail’s tax returns and paystubs reflected overtime work for more
than one year. In fact, in the first seven months of 2022, Gail made
more money from her overtime work than from her base salary.
And while there were some pay periods where Gail worked no
overtime hours, only four such periods occurred in the thirteen
months before trial. Therefore, Gail’s financial declaration and
paystubs reflect that she has “normally and consistently” worked
overtime. Utah Code § 81-6-203(2)(c); see also Tobler v. Tobler, 2014
UT App 239, ¶ 28, 337 P.3d 296 (holding that the husband
normally and consistently worked overtime when his “tax returns
and paystubs reflect[ed] a three-year history of overtime”).

¶19 The district court’s inclusion of Gail’s overtime pay in her
income was well within its discretion. Although Gail was not the

5. Utah Code section 78B-12-203 was recently renumbered as
section 81-6-203. Because the renumbering did not materially
affect the text of the statute, we cite the current version for the
readers’ convenience. And “although this section of the Utah
Code addresses imputation for the purposes of child support, it is
also relevant to imputation in the alimony context.” Miner v.
Miner, 2021 UT App 77, ¶ 83 n.9, 496 P.3d 242 (cleaned up).

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primary income earner and did not work overtime during the
bulk of the marriage, her financial declaration showed over a year
of overtime work in nearly every pay period, making the overtime
normal and consistent enough over a sufficiently long-term
period to be considered by the district court. See Clarke v. Clarke,
2023 UT App 160, ¶ 27, 542 P.3d 935 (“[W]here there exists
evidence sufficient to support a court’s rulings regarding a
divorcing couple’s finances, that ruling will be upheld on appeal,
even if evidence was presented that might have cut the other
way.”). Therefore, the district court did not abuse its discretion by
including Gail’s overtime income in her income determination
because there was sufficient evidence to show a long-term pattern
of Gail normally and consistently working overtime. 6

B. Failure to Impute Steven’s Full Preretirement Salary

¶20 Gail also argues that the district court erred by not
imputing Steven’s full preretirement salary when determining his
income for alimony purposes. However, because imputing more
income to Steven would have no impact on the alimony award,
Gail’s argument is moot. See State v. Legg, 2016 UT App 168, ¶ 9,
380 P.3d 360 (“An issue on appeal is considered moot when the
requested judicial relief cannot affect the rights of the litigants, or,
in other words, when the requested relief appears to be
impossible or of no legal effect.” (cleaned up)).

¶21 In calculating alimony, “[t]he receiving spouse’s needs
ultimately set the bounds for the maximum permissible alimony

6. If, in the future, Gail can no longer work overtime, she can file
a petition to modify the alimony award. See Clarke v. Clarke, 2023
UT App 160, ¶ 37, 542 P.3d 935 (“[T]here exists a specific remedy
for situations in which a party’s income changes materially after
a trial has been held and findings about the parties’ financial
situation have been made: a party may file a petition to modify
the existing order.”).

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award.” Rule v. Rule, 2017 UT App 137, ¶ 17, 402 P.3d 153. Even if
the payor spouse has the ability to pay more, the alimony award
is capped at the amount of the receiving spouse’s demonstrated
need. See Jensen v. Jensen, 2008 UT App 392, ¶ 13, 197 P.3d 117.
Therefore, unless the receiving spouse’s need exceeds the
remaining income of the payor spouse after accounting for the
payor spouse’s reasonable expenses, increasing the income of the
payor spouse will have no impact on the amount of alimony the
receiving spouse receives.

¶22 The district court determined Steven’s net monthly income
to be $5,750 per month, with $2,000 coming from his pension and
the rest being imputed income from an annual pretax salary of
$60,000. The district court also found that Steven’s reasonable
expenses were $3,666 per month, leaving him with $2,084 that
could go toward alimony, depending on Gail’s need. See Rule,
2017 UT App 137, ¶ 17. Because we hold that the district court did
not abuse its discretion in including Gail’s overtime wages in her
income calculation, see supra ¶¶ 17–19, the district court correctly
calculated that Gail’s net monthly income was $5,376 per month,
with $3,376 from her wages from the IRS and $2,000 from Steven’s
pension. And because the district court found that Gail’s monthly
expenses were $5,749 per month, it determined that she had a
shortfall and the “need of alimony in the amount of $373 as a base
amount plus some extra amount for future gas expenses and
travel” and awarded her alimony in the amount of $500 per
month. Because the amount of Gail’s demonstrated need—$500—
is within Steven’s current ability to pay, imputing more income to
Steven would not increase Gail’s alimony award because her
award is capped at the amount of her need. See Rule, 2017 UT App
137, ¶ 17. Therefore, since imputing more income to Steven would
not increase Gail’s alimony award, this issue is moot and “we lack
the power to address the underlying merits or issue what would
amount to an advisory opinion.” Behar v. Johnson, 2024 UT App
129, ¶ 19, 557 P.3d 607 (cleaned up).

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II. The District Court’s Property Division

A. The Toyota Tundra and TSP Division

¶23 Before we can examine Gail’s substantive arguments
involving the Toyota Tundra and the TSP, we must first address
Steven’s assertion that we lack jurisdiction to review these issues
because Gail did not preserve or appeal them. It is well settled that
“[w]e have jurisdiction to review only those rulings from which a
timely notice of appeal was filed.” Ross v. Barnett, 2018 UT App
179, ¶ 18, 436 P.3d 306. Steven argues that we lack jurisdiction to
review the issues involving the Toyota Tundra and TSP because
the district court dealt with them in separate appealable orders
that Gail did not appeal. We agree.

¶24 “It is axiomatic in this jurisdiction that failure to timely
perfect an appeal is a jurisdictional failure requiring dismissal of
the appeal.” Id. (cleaned up). Gail asserts she preserved the Toyota
Tundra issue “by filing her Utah Rule of Civil Procedure 52
Motion to Amend Filings, filed January 17, 2023.” However, in the
rule 52 motion Gail does not mention the issue of the Toyota
Tundra debt still being in her name even though Steven was
awarded the vehicle. Gail did address the Toyota Tundra issue in
her motion to enforce, but the motion to enforce was filed on
October 4, 2023, several months after the notice of appeal was filed
on July 10, 2023. The commissioner ruled on Gail’s motion to
enforce on November 8, 2023, and declined to “hold [Steven] in
contempt for not removing [Gail’s] name from the loan obligation
on the parties Toyota Tundra . . . because [Steven] was not ordered
to do so.” And the district court countersigned that order on
November 9, 2023. Because Gail did not file a notice of appeal or
amended notice of appeal to include the ruling on the motion to
enforce, she did not “perfect” any appeal from that ruling, and we
therefore lack the jurisdiction to address it. See id.

¶25 Gail also asserts that she preserved the TSP issue in her rule
52 motion, but the only mention of the TSP in the rule 52 motion

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is a passing reference about how the court previously found that
Gail could likely obtain a home comparable to her current home
if she combined the half equity from the marital home with her
share of Steven’s TSP. The district court did not hear argument on
the TSP issue until January 25, 2024, and it later issued a separate
order, which Gail did not appeal. Therefore, because Gail did not
file an amended notice of appeal regarding this issue, we lack
jurisdiction to address it. See id.

B. Division of Equity in the Marital Home

¶26 Gail also argues the district court “should have ordered an
unequal division of the marital equity in the home in order to
offset Gail’s significant disadvantage when entering the housing
market with limited income and job experience and skills.” “In
Utah, marital property is ordinarily divided equally between the
divorcing spouses. After identifying property as marital, the court
must consider whether there are exceptional circumstances that
overcome the general presumption that marital property be
divided equally.” Keyes v. Keyes, 2015 UT App 114, ¶ 28, 351 P.3d
90 (cleaned up). If such exceptional circumstances warrant an
unequal division of the marital property, the district court must
memorialize the exceptional circumstances in “detailed findings.”
Bradford v. Bradford, 1999 UT App 373, ¶ 27, 993 P.2d 887 (cleaned
up).

¶27 Here, the district court followed the presumption that
marital property be divided equally when it divided the equity in
the marital home in half. For the district court to have divided the
property differently, Gail needed to present evidence of
exceptional circumstances to overcome the presumption.
However, at trial, Gail presented no evidence about the
impediments to her qualifying for a mortgage and why these
impediments would constitute an exceptional circumstance that
would require the district court to divide the equity in the marital
home unequally. Further, in Fischer v. Fischer, 2021 UT App 145,

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505 P.3d 56, this court held that the cost of selling the marital home
and the fact that one party would be temporarily without a home
were not the kind of exceptional circumstances that justified the
substantial disparity in the value of the property awarded to each
party. See id. ¶ 26.

¶28 Because Gail did not present any evidence at trial
demonstrating why the impediments to her qualifying for a
mortgage and the tax consequences of withdrawing from the TSP
would be exceptional circumstances justifying the unequal
division of the marital home, the district court did not have the
opportunity to rule on it. Therefore, because no evidence was
presented at trial to justify a deviation from the presumption of
an equitable division, the district court did not abuse its discretion
in dividing the equity in the marital home equally. See Keyes, 2015
UT App 114, ¶ 28.

III. Attorney Fees

¶29 Gail also argues the district court should have awarded her
attorney fees. We disagree.

¶30 “[I]n an action to establish an order of custody, parent-
time, child support, alimony, or the division of property in a
domestic case, the court may order a party to pay the . . . attorney
fees . . . of the other party to enable the other party to prosecute or
defend the action.” Utah Code § 81-1-203(1)(a) (emphasis added). 7
An award of attorney fees “must be based on evidence of the
receiving spouse’s financial need, the payor spouse’s ability to
pay, and the reasonableness of the requested fees.” Dahl v. Dahl,
2015 UT 79, ¶ 168, 459 P.3d 276 (cleaned up).

7. Utah Code section 30-3-3 was recently renumbered as section
81-1-203. Because the renumbering did not materially affect the
text of the statute, we cite to the current version for the readers’
convenience.

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¶31 The district court’s “decision . . . to award attorney fees
under [the statute] is discretionary,” Wallace v. Wallace, 2024 UT
App 164, ¶ 45, 561 P.3d 187, and here the district court declined to
award attorney fees because it found that Gail had “sufficient
income to pay her own attorney’s fees as per the analysis . . .
regarding need and ability to pay.”

¶32 On appeal, Gail argues the district court erred in not
awarding her attorney fees because the court made multiple
findings regarding Gail’s financial hardship, Steven was in a more
favorable financial position to pay, and Steven’s actions
contributed to both the divorce and Gail’s current financial
hardship. But even assuming that all the above is true and the
criteria to award Gail attorney fees are satisfied, section 81-1-203
states that the district court “may order a party to pay the . . .
attorney fees.” Utah Code § 81-1-203(1)(a) (emphasis added).
There is no requirement that the district court award attorney fees
if the criteria are met; it is a discretionary decision for the district
court to make. See Wallace, 2024 UT App 164, ¶ 47. Therefore,
because Gail has not argued why the district court’s decision to
not “award her attorney fees was an abuse of discretion, i.e., a
decision that no reasonable person would make,” we affirm the
district court’s denial of Gail’s request for attorney fees. Id. 8

8. Steven also seeks attorney fees. He asserts that Gail’s appeal is
frivolous and requests an award of attorney fees incurred on
appeal pursuant to rule 33 of the Utah Rules of Appellate
Procedure. Utah R. App. P. 33(a) (allowing for reasonable
attorney fees to be awarded for an appeal that is frivolous). “[A]
frivolous appeal . . . is one that is not grounded in fact, not
warranted by existing law, or not based on a good faith argument
to extend, modify, or reverse existing law.” Id. R. 33(b). “The
sanction for bringing a frivolous appeal is applied only in
egregious cases, lest there be an improper chilling of the right to
(continued…)

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CONCLUSION

¶33 The district court did not abuse its discretion when it
included Gail’s overtime wages in its alimony determination and
when it divided the marital estate equally. The issue of the district
court’s refusal to impute to Steven his full preretirement salary is
moot. And the district court acted within its discretion when it
denied Gail’s request for attorney fees. Affirmed.

appeal erroneous lower court decisions.” Staszkiewicz v. Thomas,
2024 UT App 183, ¶ 23 n.3, 562 P.3d 723 (cleaned up), cert. denied,
Mar. 20, 2025 (No. 20250160). Although Gail was unsuccessful on
appeal, her arguments pertaining to the district court’s alimony
award and property division were “worthy of consideration and
should not be subject to the chilling effect of rule 33 sanctions.”
Marroquin v. Marroquin, 2019 UT App 38, ¶ 36, 440 P.3d 757
(cleaned up). We therefore decline to award Steven attorney fees
incurred on appeal.

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