Taylor v. Taylor

2025 UT App 94
THE UTAH C OURT OF APPEALS
JACQUELINE K EMPTON TAYLOR ,
Appellant,
v.
M ARK BENNETT TAYLOR ,
Appellee.
Opinion
No. 20230868-CA
Filed June 26, 2025
Third District Court, Silver Summit Department
The Honorable Richard E. Mrazik
No. 204500009
Beth E. Kennedy, Taylor P. Webb, and Caroline A.
Olsen, Attorneys for Appellant
F. Kevin Bond and Kevin B. Call,
Attorneys for Appellee
JUDGE JOHN D. L UTHY authored this Opinion, in which
JUDGES GREGORY K. O RME and
M ICHELE M. C HRISTIANSEN F ORSTER concurred.
LUTHY, Judge:
¶1 	Jacqueline Kempton Taylor appeals the district court’s
determination that under Texas law the alimony provisions of a
postnuptial agreement she entered with Mark Bennett Taylor are
unenforceable because they lack essential terms. We conclude that
this determination of the district court was in error. We therefore
reverse the court’s decision precluding alimony, and we remand
the matter for further proceedings consistent with this opinion.

Taylor v. Taylor
20230868-CA 	2 	2025 UT App 94
BACKGROUND
The Parties’ Marriage and Prenuptial Agreement
¶2 	Jacqueline (Jackie) and Mark1 were married in 2012. Prior
to their marriage and while living in Virginia, they signed a
prenuptial agreement. That agreement included a waiver-of-
alimony provision that stated, in part, “In the event of a divorce,
the parties hereby waive the right to make any claim for the
purposes 	of 	alimony, 	maintenance 	and 	support, 	whether
permanent, periodic, temporary, rehabilitative, bridge-the-gap,
lump sum or otherwise.”
The Postnuptial Agreement and Amendments
¶3 	In 2019, while residing in Texas, Jackie and Mark executed
a postnuptial agreement. Article I, Section B of the postnuptial
agreement reads as follows:
On page 12 of the [prenuptial agreement], the
Parties agreed to waive alimony claims. The parties
amend that provision and eliminate the waiver of
alimony. The parties agree to amend the [prenuptial
agreement] as follows: 7.07(b)
In the event of a divorce, Mark Bennett
Taylor 	shall 	pay 	Jacqueline 	Kempton 	Taylor
alimony as follows:
a. 	Mark Bennett Taylor shall pay Jacqueline
Kempton Taylor no less than 20% of his income as
spousal support/alimony upon the divorce of the
1. “As is our practice, because the parties share the same last
name, we use their first names, with no disrespect intended by the
apparent informality.” Nelson v. Nelson, 2023 UT App 38, ¶ 1 n.1,
529 P.3d 370, cert. denied, 537 P.3d 1011 (Utah 2023).

Taylor v. Taylor
20230868-CA 	3 	2025 UT App 94
parties until the death or remarriage of Jacqueline
Kempton Taylor. In the event that the jurisdiction
where the divorce is filed does not provide for
spousal support or alimony, this payment shall be
characterized as a division of marital property.
b. 	In the event that there is infidelity (defined as
any intimate contact with a person not Jacqueline
Kempton Taylor) by Mark Bennett Taylor, Mark
Bennett Taylor shall pay Jacqueline Kempton Taylor
no 	less 	than 	30% 	of 	his 	income 	as 	spousal
support/alimony until the death or remarriage of
Jacqueline Kempton Taylor. In the event that the
jurisdiction where the divorce is filed does not
provide 	for 	spousal 	support 	or 	alimony, 	this
payment shall be characterized as a division of
marital property.
¶4 	The postnuptial agreement also contains a choice-of-law
provision, which reads, “This agreement is performable in Harris
County, Texas, and shall be governed by, construed and enforced
in accordance with the laws of the State of Texas.”
The Divorce Petition and District Court Proceedings
¶5 	Jackie and Mark moved to Utah in 2020. Not long after that
move, Jackie petitioned for divorce. In her petition, Jackie asked
that under the terms of the postnuptial agreement, Mark “be
ordered to pay monthly alimony in the amount of $11,077 until
[Jackie] remarries.”
¶6 	Jackie subsequently filed a motion for partial summary
judgment, asking the district court to hold, among other things,
that 	the postnuptial agreement 	“is binding 	and 	enforceable
between the parties.” The court denied the motion, determining
that it could not “rule on the enforceability of the [postnuptial
agreement] based on the record before it as a matter of law” for

Taylor v. Taylor
20230868-CA 	4 	2025 UT App 94
several reasons, including “that the agreement with respect to use
of the word ‘income’ is ambiguous as a matter of law because it is
susceptible to more than one reasonable interpretation.” To the
court, “income” could be reasonably understood to mean either
gross income or net income. The court further determined that to
resolve this ambiguity, it would need to consider “extrinsic
evidence of the parties’ intent or understanding at the time of
entering into the contract.”
¶7 	The district court ordered a bifurcated trial. It scheduled a
first trial to resolve issues related to the postnuptial agreement,
alimony, and the parties’ incomes. And it reserved the remaining
issues, including those of child support and child custody, for a
later trial. Following Jackie’s direct testimony at the first trial,
Mark moved for judgment as a matter of law under rule 56 of the
Utah Rules of Civil Procedure, asserting that the postnuptial
agreement “is not enforceable because it lacks essential terms.”
¶8 	The district court agreed with Mark. It determined that the
agreement was silent on a number of terms that the court
regarded as essential, including the following:
a schedule or due date for the alimony payments
(i.e., whether it is to be paid weekly, monthly,
quarterly, 	or 	annually); 	a 	procedure 	for 	how
“income” is to be determined, including the sources
of proof of “income”; a procedure and schedule for
how and when the determination of “income” is to
be updated (i.e., whether it is monthly, quarterly,
annually, or when “income” changes by a certain
percentage); and when an updated calculation of
alimony becomes effective (i.e., whether it is the
week, 	month, 	quarter, 	or 	year 	after 	“income”
changes).
The court explained that because these terms were missing, it
would not be possible for either party “to determine whether and

Taylor v. Taylor
20230868-CA 	5 	2025 UT App 94
when a breach ha[d] occurred.” Having determined that the
postnuptial agreement was “silent on essential terms,” the court
determined that the agreement was unenforceable “with respect
to 	Article 	I, 	Sections 	B(a) 	and 	B(b).” 	It 	reserved 	for 	later
consideration “the issue of whether the remaining provisions” of
the agreement were enforceable.
¶9 	A week after the court ruled orally that Article I, Sections
B(a) and B(b) of the postnuptial agreement were unenforceable,
Jackie again moved for partial summary judgment, this time
requesting a holding that Article I, Section B’s elimination of the
prenuptial 	agreement’s 	alimony 	waiver 	“is 	valid 	and
enforceable,” 	despite 	the 	court’s 	ruling 	that 	the 	minimum
alimony provisions in Article I, Sections B(a) and B(b) “fail for
indefiniteness.” The court denied Jackie’s motion, ruling that the
postnuptial agreement’s clause eliminating the parties’ prenuptial
waiver of alimony was “unenforceable as a matter of law because,
under 	Texas 	law 	regarding 	severability, 	that 	clause 	[was]
mutually dependent on” the minimum alimony provisions of the
postnuptial agreement, which the court had already ruled were
unenforceable.
¶10 	Eventually, the parties entered a settlement agreement
resolving the remaining issues in the divorce while preserving
Jackie’s right to appeal the ruling regarding the enforceability of
the alimony provisions in the postnuptial agreement. The court
then issued a divorce decree based on the settlement agreement.
Jackie now appeals.
ISSUE AND STANDARD OF REVIEW
¶11 	Jackie asserts that the district court erred by concluding
that the postnuptial agreement is missing essential terms and,
therefore, that Article I, Sections B(a) and B(b) are unenforceable.
“We 	review 	a 	district 	court’s 	grant 	or 	denial 	of 	summary
judgment, as well as the court’s interpretation of contracts upon

Taylor v. Taylor
20230868-CA 	6 	2025 UT App 94
which the summary judgment was based, for correctness.” Bloom
Master Inc. v. Bloom Master LLC, 2019 UT App 63, ¶ 11, 442 P.3d
1178 (cleaned up).2
ANALYSIS
¶12 	As noted, the district court determined that Article I,
Sections B(a) and B(b) of the postnuptial agreement are silent—
and 	therefore 	indefinite—on 	the 	following 	terms, 	which 	it
deemed to be essential: (1) a procedure for how to determine
Mark’s income for purposes of the agreement’s guarantee of
minimum alimony, (2) a schedule or due date for alimony
payments, (3) a procedure and schedule for how and when the
determination of Mark’s income is to be updated, and (4) when an
updated calculation of alimony becomes effective.
¶13 	On appeal, Jackie contends that instead of holding that
Article I, Sections B(a) and B(b) are unenforceable, “[u]nder Texas
law, the district court could and should have implied any
purportedly missing terms based on other provisions of the
[postnuptial agreement] or Texas law and custom.” We agree
with Jackie and reverse the district court’s holding that Article I,
Sections 	B(a) 	and 	B(b) 	of 	the 	postnuptial 	agreement 	are
unenforceable.
¶14 	Under Texas law, “to be enforceable, a contract must
address all of its essential and material terms with a reasonable
degree of certainty and definiteness.” Fischer v. CTMI, LLC, 479
2. 	Jackie 	also 	asserts 	that 	the 	district 	court 	erred 	when 	it
determined that the postnuptial agreement’s clause eliminating
the parties’ prenuptial waiver of alimony is inseverable and, thus,
unenforceable as well. Because we conclude that the postnuptial
agreement’s minimum alimony provisions are enforceable, we
need not address the severability of the clause eliminating the
parties’ prenuptial waiver of alimony.

Taylor v. Taylor
20230868-CA 	7 	2025 UT App 94
S.W.3d 231, 237 (Tex. 2016) (cleaned up). Thus, “a contract must
at least be sufficiently definite to confirm that both parties actually
intended to be contractually bound.” Id. But “forfeitures [based
on indefinite or uncertain terms] are not favored in Texas, and
contracts are construed to avoid them.” Id. at 239 (cleaned up). In
fact, “Texas courts will not construe a contract to result in a
forfeiture unless it cannot be construed in any other way.” REO
Indus., Inc. v. Natural Gas Pipeline Co. of Am., 932 F.2d 447, 454 (5th
Cir. 1991); see also Kirby Lake Dev., Ltd. v. Clear Lake City Water
Auth., 320 S.W.3d 829, 842 (Tex. 2010) (citing the foregoing
statement from REO Industries with approval); Fischer, 479 S.W.3d
at 239 (citing Kirby Lake for its reliance on the foregoing statement
from REO Industries).
¶15 	Accordingly, a court following Texas law “will find terms
to be sufficiently definite whenever the language is reasonably
susceptible to that interpretation.” Fischer, 479 S.W.3d at 239. Such
a court “may look to the relationship between the parties and the
circumstances surrounding the contract to determine if the terms
were sufficiently definite for the parties to understand their
obligations.” Ahmed v. Ahmed, 261 S.W.3d 190, 195 (Tex. App.
2008). And it may, if necessary, “supplement[] or give[] further
precision” to a “material term that appears to be indefinite or
uncertain.” Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590
S.W.3d 471, 481 (Tex. 2019). Such supplementation may be
accomplished 	by 	“imply[ing] 	terms 	that 	can 	reasonably 	be
implied” and by giving terms “precision by usage of trade or by
course of dealing.” Fischer, 479 S.W.3d at 239 (cleaned up).
¶16 	We conclude that Article I, Section B of the postnuptial
agreement is sufficiently definite to confirm that both parties
actually intended to be contractually bound thereby.3 The plain
3. “A contract need only be definite and certain as to those terms
that are material and essential to the parties’ agreement.” Fischer
(continued…)

Taylor v. Taylor
20230868-CA 	8 	2025 UT App 94
terms of the agreement indicate that Mark and Jackie intended—
in the event of a divorce—for a trial court in the jurisdiction where
the divorce action is filed to begin by making an alimony
determination based on the law of that jurisdiction. The parties’
intent for there to be an alimony determination under applicable
state law is evident from their elimination of the prenuptial
alimony waiver and the fact that an alimony determination under
applicable state law is a prerequisite to determining whether such
an alimony award would satisfy the minimum amount of alimony
guaranteed by the postnuptial agreement. That such a state law
alimony determination is to be based on the law of the jurisdiction
in which the divorce action is filed is implicit in Article I, Sections
B(a) and B(b)’s language stating that “[i]n the event that the
jurisdiction where the divorce is filed does not provide for spousal
support or alimony, [the minimum alimony payment guaranteed
to Jackie by the postnuptial agreement] shall be characterized as a
division of marital property.” These facts lead naturally to the
conclusion that Article I, Section B of the postnuptial agreement is
not indefinite as to a schedule or due date for alimony payments,
a procedure and schedule for how and when the determination of
Mark’s income is to be updated, and when an updated calculation
of alimony becomes effective.
¶17 	Each state has law governing the timing and modification
of alimony payments.4 See, e.g., Tex. Fam. Code § 8.052 (providing
v. CTMI, LLC, 479 S.W.3d 231, 237 (Tex. 2016) (cleaned up).
Because we determine that the terms at issue here are sufficiently
definite in any event, we assume, without deciding, that they are
material and essential to the postnuptial agreement.
4. 	In 	their 	prenuptial 	agreement, 	the 	parties 	use 	the 	term
“alimony” to refer to “any claim for the purposes of alimony,
maintenance, and support.” Again using the term “alimony” to
refer 	interchangeably 	to 	alimony, 	maintenance, 	or 	support,
(continued…)

Taylor v. Taylor
20230868-CA 	9 	2025 UT App 94
factors by which the court is to “determine the nature, amount,
duration, 	and 	manner 	of 	periodic 	[spousal 	maintenance]
payments”); 	id. 	§ 	8.057(c) 	(allowing 	for 	modification 	of 	a
“maintenance” order based “on a proper showing of a material
and substantial change in circumstances”); Va. Code § 20-107.1(E)
(providing factors a court should consider “[i]n determining the
nature, 	amount 	and 	duration” 	of 	a 	spousal 	“support 	and
maintenance” award); id. § 20-109(B) (providing for modification
of 	“spousal 	support” 	upon 	an 	unanticipated 	and 	“material
change in the circumstances of the parties” or when “an event
which the court anticipated would occur during the duration of
the award and which was significant in the making of the award,
does not in fact occur through no fault of the party seeking the
modification”). This includes Utah. See Utah Code § 81-4-504(1)
(“The court has continuing jurisdiction to make substantive
changes and new orders regarding alimony based on a substantial
material change in circumstances not expressly stated in the
divorce decree or in the findings that the court entered at the time
of the divorce decree.”); id. § 81-7-102(1) (“All monthly payments
of . . . alimony are due on the 1st day of each month . . . .”); id. § 81-
7-102(5)(b) (“If the tribunal orders that the support order should
be modified, the effective date of the modification shall be the
month following service on the party whose support is affected.”);
Beals v. Beals, 682 P.2d 862, 863–64 (Utah 1984) (acknowledging a
district court’s discretion to award lump sum or periodic alimony,
depending on the circumstances of the case); Chesley v. Chesley,
2017 UT App 127, ¶ 9, 402 P.3d 65 (“Trial courts have considerable
discretion in determining alimony . . . .” (cleaned up)).
Article I, Section B of the postnuptial agreement then eliminates
the parties’ previous “alimony” waiver. Following the parties’
lead, we likewise use the term “alimony” to refer to whatever type
of spousal support payment is provided for by the law of a
particular jurisdiction.

Taylor v. Taylor
20230868-CA 	10 	2025 UT App 94
¶18 	Because the postnuptial agreement plainly contemplates
that except perhaps as to the amount and duration of the award—
which 	terms 	may 	be 	conformed 	to 	meet 	the 	minimums
guaranteed 	by 	the 	postnuptial 	agreement—alimony 	will 	be
awarded in accordance with the law of the state where the action
is filed, the postnuptial agreement is sufficiently definite as to the
timing and modification of alimony payments: those matters are
to be governed by applicable state law. And under Utah law,
which is applicable here, the frequency of payments is determined
at the discretion of the district court. See Beals, 682 P.2d at 863–64;
Chesley, 2017 UT App 127, ¶ 9. If the court orders monthly
payments, then the due date is the first of each month. See Utah
Code § 81-7-102(1). Modification of the award may be sought
upon a substantial and material change in the parties’ relevant
circumstances, including a substantial and material change in
Mark’s income. See id. § 81-4-504(1). And the effective date of any
modification is “the month following service on the party whose
support is affected.” Id. § 81-7-102(5)(b).
¶19 	For the foregoing reasons, we reverse the district court’s
determination that the postnuptial agreement is indefinite as to a
schedule or due date for alimony payments, a procedure and
schedule 	for 	how 	and 	when 	alimony—and 	Mark’s 	income
specifically—is to be updated, and when an updated calculation
of alimony becomes effective. This leaves only the issue of how
“income” is to be calculated for purposes of determining whether
the 	alimony 	amount 	identified 	under 	state 	law 	meets 	the
minimum amount guaranteed by the postnuptial agreement.
¶20 	Unlike the terms already addressed, the term “income” in
Article I, Sections B(a) and B(b) of the postnuptial agreement
cannot be readily rendered sufficiently definite by reference to the
law of the jurisdiction in which the divorce action is filed. This is
true for at least two reasons. First, state laws generally do not
include a definition of “income” for purposes of determining a
minimum alimony amount. This is so because state laws generally

Taylor v. Taylor
20230868-CA 	11 	2025 UT App 94
do not provide for a minimum amount of alimony; instead, after
any prerequisites are met, alimony calculations are usually left to
the discretion of the trial court based on consideration of a set of
mandated factors. See, e.g., Utah Code § 81-4-502; Tex. Fam. Code
§ 8.052; Va. Code § 20-107.1(E). Second, those mandated factors
usually include the parties’ respective needs and ability to meet
those needs, factors that are frequently determined by first
identifying their gross incomes and, from there, their net incomes.
See, e.g., Merrill v. Merrill, 2024 UT App 125, ¶¶ 64‒67, 556 P.3d
1070; Chaney v. Karabaic-Chaney, 837 S.E.2d 76, 77‒80 (Va. Ct. App.
2020); Howe v. Howe, 551 S.W.3d 236, 256‒57 (Tex. App. 2018).
Because state laws generally do not include a single definition of
“income” that is applicable to all alimony determinations, or a
definition of “income” specifically for purposes of determining a
minimum alimony amount, we must look somewhere other than
the law of the jurisdiction in which the divorce action is filed for
a definite meaning of “income” as used in Article I, Section B of
the postnuptial agreement.
¶21 	The postnuptial agreement directs that it is to be “governed
by, construed and enforced in accordance with the laws of the
State of Texas.” So we now look to Texas law. And in this context,
Texas law is somewhat unusual. The Texas Family Code states,
“A court may not order maintenance that requires an obligor to
pay monthly more than the lesser of: (1) $5,000; or (2) 20 percent
of the spouse’s average monthly gross income.” Tex. Fam. Code
§ 8.055(a). And the Texas Family Code then specifies what is—and
is not—included in “gross income.” See id. § 8.055(a-1). Thus,
Texas law identifies “gross income” as the measure of income to
be used when determining whether an otherwise applicable
alimony amount is within or exceeds a defined threshold, and it
provides specific instructions on how to determine a party’s
“gross income” for that purpose.
¶22 	As noted at the outset, Texas law requires that contracts be
construed to avoid forfeitures based on indefinite or uncertain

Taylor v. Taylor
20230868-CA 	12 	2025 UT App 94
terms where possible, see Fischer v. CTMI, LLC, 479 S.W.3d 231,
239 (Tex. 2016), and it therefore allows courts to “supplement[] or
give[] further precision” to a material term that might otherwise
“appear[] to be indefinite or uncertain,” Barrow-Shaver Res. Co. v.
Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 481 (Tex. 2019), including
by looking to “usage of trade,” Fischer, 479 S.W.3d at 239 (cleaned
up). And again, the postnuptial agreement directs that its terms
be “construed and enforced in accordance with the laws of the
State of Texas.” Because Texas law identifies a specific definition
of gross income as the measure to be used when determining
whether an otherwise applicable alimony amount is within or
exceeds 	a 	particular 	threshold, 	we 	conclude 	that 	the 	term
“income” in Article I, Sections B(a) and B(b) of the postnuptial
agreement must be supplemented to mean “gross income” as
defined in section 8.055(a-1) of the Texas Family Code.
¶23 	Resisting this conclusion, Mark cites two Texas cases, Deen
v. Deen, 631 S.W.2d 215 (Tex. App. 1982), and Dicker v. Dicker, 434
S.W.2d 707 (Tex. App. 1968). In Deen, divorcing spouses entered a
settlement agreement that required the husband to pay the wife
“[t]he sum of the greater of $1,000.00 per month or forty percent
(40%) of the [husband’s] earned income . . . as defined by the
Internal Revenue Code, per month from the date of divorce until
they shall cease upon the occurrence of one of the contingencies
specified 	[in 	the 	agreement].” 	631 	S.W.2d 	at 	216. 	Mark
characterizes this as “an instructive example of how a percentage-
based spousal support contract should be worded to provide the
essential terms that are missing from the [postnuptial agreement]
in this case.”
¶24 	In 	Dicker, 	divorcing 	spouses 	entered 	a 	settlement
agreement that said,
The Husband shall, without regard to remarriage of
the Wife in the event of a divorce between the
parties, pay to the Wife the sum of One Hundred

Taylor v. Taylor
20230868-CA 	13 	2025 UT App 94
Thousand ($100,000.00) Dollars, net after taxes, if
any. The Husband shall pay said sum of One
Hundred 	Thousand 	($100,000.00) 	Dollars 	by
making annual payments in an amount equal to one
third of the net cash flow received by him each year
from all his assets and investments. For purposes of
this provision the term “net cash flow” shall be
understood to mean the difference between gross
receipts and actual cash disbursements incurred in
the business of earning such receipts. Such cash
disbursements shall be only those as are expressly
deductible for Federal income tax purposes, but no
deduction shall be allowed for depreciation.
434 S.W.2d at 710‒11. Mark similarly describes this agreement as
a “helpful example[] of the types of essential terms that are absent
from the [postnuptial agreement] in this case.”
¶25 	However, the issue in Deen was whether the phrase
“earned income of [the husband] as defined by the Internal
Revenue Code” was ambiguous, and the court held that it was
not. See 631 S.W.2d at 217. The definiteness of the contract was not
in question. See id. at 216‒17. Likewise, Dicker did not involve the
definiteness of the relevant contractual provision but, rather, the
proper interpretation of that provision. See 434 S.W.2d at 712‒13.
Neither case held that the terms at issue—or similarly specific
ones—were 	required 	to 	render 	the 	agreements 	sufficiently
definite to be enforceable. See Deen, 631 S.W.2d at 216‒17; Dicker,
434 S.W.2d at 712‒13. Accordingly, these cases do not sway our
analysis.
¶26 	In sum, for the reasons given, we conclude that, along with
the other challenged terms of the postnuptial agreement, the term

Taylor v. Taylor
20230868-CA 	14 	2025 UT App 94
“income” is sufficiently definite to render Article I, Sections B(a)
and B(b) of the contract enforceable.5
CONCLUSION
¶27 	The district court erred by holding that Article I, Sections
B(a) and B(b) of the postnuptial agreement are unenforceable due
to insufficiently definite terms. We therefore reverse the district
court’s decision on that issue and remand this matter for further
proceedings consistent with this opinion.6
5. In addition to overruling the district court’s enforceability
determination, our holding here also necessarily overrules its
prior determination that the term “income” is ambiguous. See
Medical Towers, Ltd. v. St. Luke’s Episcopal Hosp., 750 S.W.2d 820,
822 (Tex. App. 1988) (“[W]hen the contract is so worded that a
court may properly give it a certain or definite legal meaning, it is
not ambiguous.”).
6. 	Mark 	identifies 	several 	additional 	arguments 	about 	the
formation and validity of the postnuptial agreement that he raised
below but on which the district court did not render a decision.
Because “we are mindful that we are a court of review, not of first
view,” Richmond v. Bateman, 2024 UT App 103, ¶ 31, 554 P.3d 341
(cleaned up), we do not address those arguments. Nor do we
address the meaning of “intimate contact” under Article I, Section
B(b) of the postnuptial agreement. Those arguments and issues
may be again raised and resolved on remand.