Bergmann v. Bergmann

2018 UT App 130
THE UTAH COURT OF APPEALS
K AREN BERGMANN ,
Appellee,
v.
EUGENE D. BERGMANN ,
Appellant.
Opinion
No. 20160217-CA
Filed June 28, 2018
Fourth District Court, Provo Department
The Honorable James R. Taylor
No. 144400815
Emily Adams, Attorney for Appellant
Thomas J. Burns and Philip M. Ballif, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES D AVID N. M ORTENSEN and R YAN M. HARRIS
concurred.
CHRISTIANSEN, Judge:
¶1 	Eugene D. Bergmann and Karen Bergmann, now known
as Karen Christensen, divorced by bifurcated decree in May
2015. The trial court reserved several issues for trial, including
the 	legal 	effect 	of 	a 	premarital 	agreement 	(the 	Premarital
Agreement) the parties entered into in 2001 and a subsequent
agreement 	they 	executed 	in 	2011 	(the 	2011 	Agreement). 	In
January 2016, the trial court issued its amended findings of fact
and conclusions of law, which addressed all of the remaining
issues. Bergmann moved to alter or amend judgment, which the
court denied. Bergmann now appeals from the denial of that
motion. We affirm and remand for the limited purpose of

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calculating Christensen’s reasonable attorney fees incurred on
appeal.
BACKGROUND
¶2 	Bergmann and Christensen married in 2001. Before they
married, the parties executed the Premarital Agreement, which
provides, in relevant part:
4.02 Living Expenses. During their marriage, the
parties 	shall 	establish 	a 	joint 	checking 	account
which will be the fund used for basic family living
expenses, 	such 	as 	home 	mortgage 	payments,
public 	liability 	and 	content 	insurance, 	utilities,
property taxes, property maintenance as to the
primary residence . . . , together with food and
similar 	basic 	living 	expenses. 	Each 	party 	shall
make deposits to such joint checking account in
such portions and such amounts as from time to
time may be determined necessary by them for
such 	purposes. 	Initially, 	the 	parties 	have
determined that Eugene will contribute $4,000 per
month and Karen will contribute $2,000 per month,
plus Social Security payments received by her. [1]
The parties recognize that each is able to make
such contributions. . . . If the parties cannot agree
as to the contribution to be made hereunder, each
party shall bear the costs of his or her respective
living 	expenses, 	unless 	one 	of 	the 	parties
determines to pay more than his or her share
which he or she shall be entitled to do.
1. Christensen’s social security benefits averaged $2,000 per
month.

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¶3 	After they married, the parties operated for years without
referring to the Premarital Agreement. During the marriage, the
parties agreed that they would contribute equally to the family
budget, and they both contributed to the joint checking account
for 	basic 	family 	living 	expenses. 	Consistent 	with 	that
understanding, 	the 	parties 	tracked 	their 	contributions 	and
withdrawals in a spreadsheet available to both of them. Over
time, Christensen’s contributions were significantly larger than
Bergmann’s. Bergmann acknowledged this fact in a November
2010 email to Christensen, in which he stated that he was
approximately $159,000 “in debt” to her.
¶4 	Shortly 	after 	the 	2010 	email, 	Bergmann 	indicated 	to
Christensen that he needed money to help pay the basic family
living expenses. Because Christensen had paid more of the basic
family living expenses over the years than Bergmann, she agreed
to give Bergmann $20,000 only if Bergmann agreed to provide
“some assurance that [she] would get paid back.” Bergmann
suggested “that he would transfer [his] equity [in the parties’
marital home] to [Christensen] upon the sale of the home.” On
January 7, 2011, the parties entered into the 2011 Agreement,
which provides,
AGREEMENT
January 7, 2011: It is agreed that Eugene Bergmann
and Karen Bergmann share equal ownership in
their home . . . . It is also agreed to that Eugene will
assign an amount of his equity to Karen in the
amount 	of 	170,000 	dollars. 	This 	. 	. 	. 	amount
constitutes an[] approximate amount of additional
joint expenditures that Eugene has agreed to and is
owing to Karen. This exact amount will be verified
at some time in the future in a spreadsheet which
they will both come to a further mutual agreement
on. This spreadsheet will then be memorialized
into a more formal agreement to [supersede] this
one.

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Two days later, Christensen deposited $20,000 into the parties’
joint checking account, and Bergmann used the money to pay
the basic family living expenses.
¶5 	Christensen filed for divorce in 2014. The trial court
entered a bifurcated decree of divorce, dissolving the marriage
and reserving several issues for trial. The two primary issues at
trial were (1) whether the Premarital Agreement required the
parties to make equal contributions to the basic family living
expenses, 	and 	(2) 	whether, 	under 	the 	terms 	of 	the 	2011
Agreement, Bergmann was required to assign to Christensen
$170,000 of his initial one-half share of the proceeds from the sale
of the parties’ marital home.
¶6 	The trial court held a one-day bench trial, at which both
parties 	testified. 	The 	court 	determined 	that 	the 	Premarital
Agreement was an enforceable agreement but that Section 4.02
of the Premarital Agreement “does not say that [Bergmann and
Christensen] are each going to be exactly responsible for fifty
percent of the basic family living expenses forever and through
the life of the Premarital Agreement.” The court noted that
throughout the marriage, the parties had “not worr[ied] about
the technicalities of the Premarital Agreement. In fact, they
operated for years without referring to a copy of it.” Although
the 	parties 	had 	maintained 	a 	spreadsheet 	tracking 	their
individual contributions to the joint checking account, the court
found that “this practice of handling basic family living expenses
did not create a substitute contract that obligated them to divide
and 	pay 	basic 	family 	living 	expenses 	on 	a 	fifty-fifty 	basis
forever.” The court found that during the course of the marriage,
the parties had some disputes about who would pay for what,
but the parties “work[ed] this out when they entered into the
[the 2011 Agreement].”
¶7 	The court observed that, in the 2011 Agreement, the
parties acknowledged that Christensen had paid more of the
basic family living expenses than Bergmann, that Bergmann
owed Christensen “an unspecified amount” of money, and that

Bergmann v. Bergmann
20160217-CA 	5 	2018 UT App 130
Bergmann agreed to assign to Christensen $170,000 of his equity
share in the parties’ marital home on this basis. The court then
determined 	that 	the 	2011 	Agreement 	was 	an 	enforceable
agreement, 	supported 	by 	consideration. 	Specifically, 	at
Bergmann’s request, Christensen transferred $20,000 into the
parties’ 	joint 	checking 	account 	to 	help 	pay 	past 	due 	and
upcoming 	basic 	family 	living 	expenses, 	and, 	in 	return,
Bergmann assigned to Christensen $170,000 of his share of
equity in the marital home. The court ultimately concluded that
the 2011 Agreement was not a modification to the Premarital
Agreement but that it was “an additional, enforceable agreement
anticipated by the Premarital Agreement.”
¶8 	Accordingly, 	the 	court 	awarded 	Christensen 	$170,000
from Bergmann’s initial one-half share of the proceeds from the
sale of the marital home. The court also awarded Christensen her
attorney 	fees 	incurred 	in 	connection 	with 	responding 	to 	a
pretrial motion in limine Bergmann had filed, concluding that
the motion was “frivolous and patently inappropriate.” The
court determined that the parties were otherwise responsible for
their own attorney fees and costs.
¶9 	After 	trial, 	Bergmann 	moved 	to 	alter 	or 	amend 	the
judgment pursuant to rule 59(a)(7) of the Utah Rules of Civil
Procedure. See Utah R. Civ. P. 59(a)(7) (“[A] new trial may be
granted to any party on any issue for any of the following
reasons: . . . that the verdict or decision is contrary to law or
based on an error in law.”). In his motion, Bergmann asserted
that when the parties entered into the 2011 Agreement, “both
parties believed that there was a contractual duty under [the
Premarital Agreement] that they each pay 50/50 for all joint
living expenses.” According to Bergmann,
[i]nasmuch as the Court ruled that in fact there was
no legal obligation for [Bergmann] to reimburse
[Christensen] for 50% of all marital expenditures,
where [the 2011 Agreement] was fundamentally
based on the mutual mistake that there was a

Bergmann v. Bergmann
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contractual 	obligation 	under 	[the 	Premarital
Agreement] for a 50/50 responsibility of family
living 	expenses, 	this 	contract 	should 	not 	be
enforced by the Court.
Bergmann also asserted that the 2011 Agreement was based on
the parties’ mutual mistake regarding the amount Bergmann
owed Christensen. Bergmann requested that the court “reverse
its finding that [Christensen] receive[] $170,000 from [Bergmann]
and 	order 	that 	[Christensen] 	return 	those 	funds 	to 	him.”
Christensen filed a response to the motion to amend, asserting
that 	Bergmann’s 	motion 	was 	“merely 	a 	rehash 	of 	closing
argument.” She also requested her attorney fees incurred in
“having to oppose [Bergmann’s] motion.”
¶10 	The trial court denied Bergmann’s motion, stating:
The arguments [Bergmann] has advanced are not
new to the case. He does not seek to present new
evidence. There was no[] surprise in the sense that
evidence or theories were allowed to be presented
at trial that could not have been anticipated by the
parties 	in 	preparation 	for 	the 	trial. 	The 	Court
disagrees with [Bergmann’s] characterization about
the intent and understanding of the parties as they
attempted 	to 	define 	their 	marital 	relationship
through 	agreement 	and 	practice. 	The 	Court 	is
satisfied that the ruling announced from the bench
and memorialized in the subsequently prepared
findings 	and 	decree 	are 	legally 	and 	factually
correct.
The court awarded attorney fees to Christensen related to the
post-trial motion, concluding that Bergmann’s motion to amend
“did not materially advance the matter and required a careful
response from [Christensen’s] counsel.” Bergmann appeals.

Bergmann v. Bergmann
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ISSUES AND STANDARDS OF REVIEW
¶11 	Bergmann 	contends 	that 	the 	trial 	court 	abused 	its
discretion when it denied his rule 59 motion to alter or amend.
Within this argument, Bergmann asserts that the trial court erred
when it ruled that the 2011 Agreement was enforceable, because
the parties were operating under a mutual mistake of fact
(1) that the Premarital Agreement required equal contributions
and (2) regarding the amount Bergmann owed Christensen.
¶12 	“Generally, 	we 	afford 	trial 	judges 	wide 	latitude 	in
granting or denying rule 59 motions.” Sanpete Am., LLC v.
Willardsen, 2011 UT 48, ¶ 28, 269 P.3d 118. “We grant this
discretion because the trial court, having heard the evidence,
typically is in a better position to determine whether the grant or
denial of a rule 59 motion is warranted.” Id. “Consequently, we
generally disturb a trial court’s grant or denial of a rule 59
motion only if it constitutes an abuse of discretion.” Id. To the
extent that our review turns on facts presented at trial, we defer
to the trial court’s underlying findings of fact, “which shall not
be set aside unless clearly erroneous.” Id. ¶ 29 (citation and
internal 	quotation 	marks 	omitted). 	“Findings 	are 	clearly
erroneous if they are against the clear weight of the evidence or
if the appellate court reaches a definite and firm conviction that a
mistake has been made.” Sorenson v. Kennecott-Utah Copper Corp.,
873 P.2d 1141, 1147 (Utah Ct. App. 1994). “The issue of mistake
of fact involves factual determinations and conclusions of law.
We review factual determinations for clear error and conclusions
of law for correctness.” Deep Creek Ranch, LLC v. Utah State
Armory Board, 2008 UT 3, ¶ 10, 178 P.3d 886.
ANALYSIS
I. Mutual Mistake
¶13 	Bergmann contends that the parties “entered into the 2011
Agreement operating under a mutual mistake of fact” and that

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20160217-CA 	8 	2018 UT App 130
the 	trial 	court 	“erred 	when 	it 	did 	not 	rescind 	the 	2011
Agreement.”2 He first asserts that “the parties executed the 2011
Agreement erroneously believing that the Premarital Agreement
required them to equally contribute to basic living expenses.”
Alternatively, he asserts that the parties entered into the 2011
Agreement operating under a mutual mistake about the amount
Bergmann owed Christensen.
¶14 	“A mutual mistake occurs when both parties, at the time
of contracting, share a misconception about a basic assumption
or vital fact upon which they based their bargain.” Cantamar,
LLC v. Champagne, 2006 UT App 321, ¶ 38, 142 P.3d 140 (citation
and internal quotation marks omitted). “Mutual mistake of fact
2. Christensen contends that Bergmann “waived any possible
mutual mistake argument” by failing to plead the defense with
particularity in his response to Christensen’s petition for divorce.
The record indicates that Bergmann raised the issue of mutual
mistake at trial and that Christensen objected on the same basis
she asserts now. The trial court stated:
Well, 	I 	don’t 	want 	to 	say 	that 	[Bergmann 	is]
necessarily going to prevail on those defenses, but
the fact of the matter is [that] this is equity, and
those defenses are largely equitable arguments. It
comes down to what . . . can be argued as fair
under the circumstances. So I’m not too exercised
that they weren’t pled in advance. I’m not sure
they apply in this case.
In its amended findings of fact and conclusions of law, the court
did not expressly rule on Bergmann’s mutual-mistake argument.
But in denying Bergmann’s motion to alter or amend, which was
based on the theory of mutual mistake, the court stated that
Bergmann’s arguments “are not new to the case” and that his
“evidence or theories were allowed to be presented at trial.”
Because 	the 	trial 	court 	apparently 	considered 	Bergmann’s
mutual-mistake defense, we are not persuaded by Christensen’s
contention that Bergmann waived the defense.

Bergmann v. Bergmann
20160217-CA 	9 	2018 UT App 130
makes a contract voidable and is a basis for equitable rescission.”
Robert Langston, Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct.
App. 1987) (citation omitted). “The proponent of a mutual-
mistake claim must prove the elements by clear and convincing
evidence.” High Desert Estates LLC v. Arnett, 2015 UT App 196,
¶ 11, 357 P.3d 7. The trial court did not explicitly address
Bergmann’s mutual-mistake arguments in its amended findings
of fact and conclusions of law, but in its denial of Bergmann’s
motion to alter or amend judgment, the court “disagree[d] with
[Bergmann’s] 	characterization 	about 	the 	intent 	and
understanding of the parties as they attempted to define their
marital relationship through agreement and practice.”
A. 	Equal Contributions
¶15 	Bergmann asserts that the parties entered into the 2011
Agreement “because they believed the Premarital Agreement
required equal contributions.” The trial court determined that
section 4.02 of the Premarital Agreement “does not say that
[Bergmann 	and 	Christensen] 	are 	each 	going 	to 	be 	exactly
responsible for fifty percent of the basic family living expenses
forever and through the life of the Premarital Agreement.”
Bergmann does not challenge this finding on appeal; indeed, he
“embraces 	that 	finding 	on 	appeal.” 	Instead, 	Bergmann
challenges the court’s “next step,” i.e., the court’s determination
that the 2011 Agreement was enforceable and its “implied[]”
rejection of his mutual-mistake argument.
¶16 	According to Bergmann, “[e]verything in 	this case 	is
underpinned by the parties’ belief that the Premarital Agreement
required equal contributions.” Bergmann asserts that he “clearly
testified that he signed the 2011 Agreement because he believed
the Premarital Agreement required him to contribute equally to
basic 	family 	living 	expenses.” 	He 	further 	asserts 	that
Christensen’s 	testimony 	demonstrated 	that 	she 	expected
Bergmann 	to 	contribute 	equally 	to 	the 	basic 	family 	living
expenses and that the only reason Christensen gave for that

Bergmann v. Bergmann
20160217-CA 	10 	2018 UT App 130
expectation “was the terms of the Premarital Agreement.” We
are not persuaded.
¶17 	To begin with, the evidence is, at best, conflicting as to
whether the parties entered into the 2011 Agreement based on
the mistaken belief that the Premarital Agreement required them
to contribute equally to the family’s basic living expenses. See
generally High Desert Estates LLC v. Arnett, 2015 UT App 196,
¶ 14, 357 P.3d 7 (“[W]e will not reweigh . . . conflicting evidence
so 	long 	as 	there 	is 	evidence 	to 	support 	the 	trial 	court’s
findings.”). Bergmann testified that at the time he entered into
the 2011 Agreement, he believed he was “required to pay 50/50
of all living expenses” and that the 2011 Agreement was a result
of that mistaken belief. He further testified that he believed he
was 	indebted 	to 	Christensen 	based 	upon 	the 	terms 	of 	the
Premarital Agreement.
¶18 	However, as Christensen correctly observes, Bergmann
also testified that he entered into the 2011 Agreement as a form
of estate planning:
I signed [the 2011 Agreement] to essentially—in
the event of my death, you know, that there would
be 	no 	problem 	with 	[Christensen] 	to 	have 	the
whole house. We had a $170,000 mortgage on the
house still, and it, you know, seemed reasonable.
Then we also, you know, didn’t have all our real
numbers.
So we just had an approximate . . . debt that
was 	159 	or 	something 	like 	that, 	and 	we 	just
assigned that number to it, so—in the event of
something happening. Then at some future date
we would do the hard work and sort of figure out
what the real numbers were, the real contributions
and that sort of thing; but it was based on a 50/50
understanding.

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Additionally, 	Bergmann 	acknowledged 	at 	trial 	that 	shortly
before the parties signed the 2011 Agreement, he had asked
Christensen to put an additional $20,000 into the parties’ joint
checking account and that, in the 2011 Agreement, he had agreed
to assign to Christensen $170,000 of his equity share in the
parties’ marital home.
¶19 	Christensen’s 	testimony 	on 	the 	matter 	also 	does 	not
unequivocally 	establish 	that 	she 	entered 	into 	the 	2011
Agreement 	based 	on 	an 	assumption 	that 	the 	Premarital
Agreement required the parties to contribute equally to basic
family 	living 	expenses. 	Indeed, 	although 	Christensen’s
testimony 	demonstrates 	that 	she 	expected 	the 	parties 	to
contribute equally to basic living expenses, Christensen never
explicitly 	stated 	that 	this 	expectation 	was 	based 	on 	the
Premarital 	Agreement. 	Rather, 	Christensen 	stated 	(1) she
expected Bergmann to contribute equally from the start of their
marriage; (2) Bergmann failed to meet that expectation, forcing
her to contribute more to basic family living expenses; (3) she
expected him to make her whole, and Bergmann had “sent [her]
many messages that he would make [her] whole”; and (4) when
Bergmann needed $20,000 and had not followed through on his
promises 	to 	make 	her 	whole 	thus 	far, 	she 	required 	more
assurance that she would get paid back.
¶20 	In any event, regardless of the source of the parties’ belief
that they were required to make equal contributions, the record
demonstrates that the parties conducted their marriage with the
understanding 	that 	they 	would 	contribute 	equally 	to 	basic
family living expenses. The trial court found, and Bergmann
agrees, that the parties operated for years without referring to
the Premarital Agreement and that they did not worry about the
technicalities of the Premarital Agreement. The trial court also
found that the parties worked together to pay basic living
expenses. The record bears this out—when Bergmann either
could not or would not contribute to the basic family living
expenses, 	Christensen 	rose 	to 	the 	occasion 	and 	paid 	those
expenses so that the parties would not overdraw on their joint

Bergmann v. Bergmann
20160217-CA 	12 	2018 UT App 130
account. Additionally, throughout their marriage, the parties
maintained a detailed spreadsheet related to the basic family
living expenses, tracking transactions for the expenses from the
joint checking account as well as from credit cards tied to their
personal, separate funds. This practice of working together to
pay basic living expenses and of keeping detailed records of
their contributions demonstrates the parties’ understanding and
expectation that they would contribute equally to basic living
expenses.
¶21 	Moreover, and perhaps most importantly, the fact that the
parties understood that they would contribute equally (whether
based on the Premarital Agreement or from their course of
conduct 	throughout 	the 	marriage) 	does 	not 	undermine 	the
legitimacy of the 2011 Agreement or the fact that, at the time the
parties 	entered 	into 	the 	2011 	Agreement, 	they 	shared 	an
understanding that Bergmann owed Christensen money and
that Christensen needed to be made whole. The trial court found
that 	in 	the 	2011 	Agreement 	the 	parties 	acknowledged 	that
Christensen had paid more of the basic family living expenses
than Bergmann and that there was an “unspecified amount” that
Bergmann owed Christensen. The trial court determined that it
was 	“because 	of 	this 	that 	[Bergmann] 	agreed 	in 	the 	[2011
Agreement] to assign to [Christensen] $170,000 of his equity
share in the marital home.” The court further determined that
Christensen 	had 	transferred 	$20,000 	into 	the 	joint 	checking
account to help Bergmann pay past due and upcoming basic
living expenses and that, in exchange, Bergmann had assigned
$170,000 of his equity share of the parties’ home. The court
concluded 	that 	the 	2011 	Agreement 	was 	enforceable 	as 	a
separate 	agreement, 	that 	the 	agreement 	was 	supported 	by
separate consideration, and that both parties had changed their
position 	in 	reliance 	on 	the 	agreement. 	There 	is 	sufficient
evidence in the record to support the court’s findings.
¶22 	Specifically, 	the 	record 	demonstrates 	that 	when
Bergmann needed the $20,000 and approached Christensen for
help, both parties understood that Christensen had contributed

Bergmann v. Bergmann
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more 	to 	the 	basic 	family 	living 	expenses 	than 	Bergmann.
Christensen testified that early on in the parties’ marriage, she
started 	contributing 	more 	when 	Bergmann 	“couldn’t 	or
wouldn’t” contribute. She stated that when they had bills to pay,
Bergmann 	“would 	have 	some 	reason 	why 	he 	couldn’t”
contribute, and the burden was on Christensen to keep the joint
account from being overdrawn. In his November 2010 email,
Bergmann acknowledged that he was approximately $159,000
“in debt” to Christensen, and he apologized for things “being
more of a mess” on his side financially.
¶23 	In 	testifying 	about 	the 	events 	that 	“led 	up 	to 	the
execution” of the 2011 Agreement, Christensen testified that
when Bergmann approached her about the $20,000, she had not
been “seeing any results in [Bergmann] trying . . . to make [her]
whole.” Consequently, before she was willing to give Bergmann
the money, she sought “something more tangible than just a
promise that [she] would be made whole.” Accordingly, the
parties agreed that “if [Christensen] could have some assurance
that [she] would get paid back,” she would make the $20,000
deposit into the joint checking account. Christensen testified that
Bergmann suggested that he transfer $170,000 of his equity share
in the parties’ marital home in exchange for the $20,000. On
January 7, 2011, the parties entered into the 2011 Agreement, in
which 	Bergmann 	assigned 	his $170,000 	equity 	share 	of 	the
parties’ home to Christensen. Two days later, on January 9, 2011,
Christensen deposited $20,000 into the parties’ joint checking
account, and Bergmann used the funds to pay his obligations.
¶24 	Bergmann has not demonstrated that the trial court’s
findings regarding the 2011 Agreement lack evidentiary support
or 	that 	those 	findings 	are 	clearly 	erroneous. 	Consequently,
Bergmann has failed to demonstrate that the parties entered into
the 2011 Agreement based on a mutual mistake of fact. We
therefore conclude that the trial court did not err in enforcing the
2011 Agreement, and did not abuse its discretion in denying
Bergmann’s motion to alter or amend judgment on this basis.

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B. 	The Amount Bergmann Owed
¶25 	As 	an 	alternative 	to 	his 	first 	argument, 	Bergmann
contends that “the parties entered into the 2011 Agreement
operating 	under 	a 	mutual 	mistake 	about 	the 	amount 	Mr.
Bergmann owed Ms. Christensen.”
¶26 	The 2011 Agreement stated, in relevant part, that the
$170,000 represented an
approximate 	amount 	of 	additional 	joint
expenditures that [Bergmann] has agreed to and is
owing to [Christensen]. This exact amount will be
verified at some time in the future in a spreadsheet
which they will both come to a further mutual
agreement 	on. 	This 	spreadsheet 	will 	then 	be
memorialized into a more formal agreement to
[supersede] this one.
According 	to 	Bergmann, 	the 	parties 	entered 	into 	the 	2011
Agreement 	“believing 	that 	Mr. 	Bergmann’s 	debt 	to 	Ms.
Christensen totaled $170,000,” but “the evidence adduced at trial
shows that Mr. Bergmann . . . owed Ms. Christensen much less.”
¶27 	In support of his claim that he owed Christensen less than
$170,000, 	Bergmann 	observes 	that 	Christensen 	hired 	an
accountant to help calculate the amount Bergmann owed and
that the accountant determined that Christensen had contributed
approximately $168,000 more than Bergmann to the parties’ joint
account. 	Bergmann 	asserts 	that 	it 	is 	undisputed 	that 	the
accountant’s 	figure 	“did 	not 	credit 	Mr. 	Bergmann 	for
approximately $22,000 in federal tax withholdings” or “include
approximately $41,000 of Mr. Bergmann’s contributions that
Ms. Christensen 	characterized 	as 	withdrawals,” 	thus
demonstrating 	that 	“Bergmann, 	did 	not, 	in 	fact, 	owe 	. 	. 	.
Christensen 	$170,000.” 	Bergmann 	further 	asserts, 	without
citation to the record, that he “presented undisputed evidence
that [he] owed tens of thousands of dollars less than $170,000.”

Bergmann v. Bergmann
20160217-CA 	15 	2018 UT App 130
¶28 	The trial court found that, in the 2011 Agreement, the
parties had acknowledged that Christensen had contributed
more to the parties’ basic family living expenses than Bergmann
and had acknowledged that Bergmann owed Christensen an
“unspecified amount.” In its oral ruling, the court determined
that the parties had “settled for $170,000” and that Christensen
“took [$]170,000 to cancel what [Bergmann] owed at that point,
and that made it even from then on.” The court ultimately
concluded that Bergmann was required to pay Christensen the
$170,000 they had agreed to in the 2011 Agreement. In so ruling,
the court explicitly rejected both parties’ attempts to alter the
$170,000 amount stated in the 2011 Agreement.
¶29 	Specifically, at trial, Christensen testified that she had
hired an accountant to help her determine the exact amount
Bergmann owed her. Christensen described the information she
had provided to her accountant and ultimately relied on the
figures prepared by her accountant (and received as evidence by
the trial court) to support her testimony regarding how much
Bergmann 	owed 	her. 	Christensen’s 	accountant 	testified 	that
Christensen had contributed approximately $336,000 more than
Bergmann 	to 	the 	parties’ 	joint 	checking 	account 	and 	that
Bergmann’s share of this difference was approximately $168,000.
However, 	the 	court 	rejected 	both 	Christensen’s 	and 	her
accountant’s testimony “about the family expenses,” stating that
it “did not find [that testimony] to be particularly credible.” See
generally Henshaw v. Henshaw, 2012 UT App 56, ¶ 11, 271 P.3d 837
(“It is within the province of the trial court, as the finder of fact,
to 	resolve 	issues 	of 	credibility.”). 	And 	with 	regard 	to 	the
accountant specifically, the court found that his “conclusions
and tables” were “tainted” by Christensen’s “assumptions and
directions about what was a family expense [and] what was
not.”
¶30 	The court also rejected Bergmann’s testimony regarding
several out-of-pocket expenses he had allegedly incurred in
getting the marital home ready to sell and which he believed
should offset his debt to Christensen. Bergmann testified that he

Bergmann v. Bergmann
20160217-CA 	16 	2018 UT App 130
had spent “101.25 hours” working on the parties’ marital home,
totaling $4,716.85 in out-of-pocket expenses and “over $11,000”
in labor. He also submitted numerous receipts into evidence.3
But 	the 	court 	found 	that 	Bergmann’s 	testimony 	was 	not
“complete 	or 	credible 	enough.” 	The 	court 	explained 	that
Bergmann was “vague and unspecific about [his] out-of-pocket
expenses” and that it was hard to distinguish between the work
that Bergmann did “that he normally would have contracted for
and work that a homeowner would normally do to protect their
own asset.” Concluding that Bergmann provided “[n]othing
reliable” 	regarding 	the 	value 	of 	that 	work, 	the 	court
“disregard[ed] that testimony.”
¶31 	The resolution of this issue required the trial court to
determine the credibility of each witness’s testimony. On appeal,
we 	give 	great 	deference 	to 	a 	trial 	court’s
determinations 	of 	credibility 	based 	on 	the
presumption that the trial judge, having personally
observed the quality of the evidence, the tenor of
the proceedings, and the demeanor of the parties,
is in a better position to perceive the subtleties at
issue than we can looking only at the cold record.
Sauer v. Sauer, 2017 UT App 114, ¶ 6, 400 P.3d 1204 (citation and
internal quotation marks omitted). “Consequently, in all actions
tried upon the facts without a jury, findings of fact shall not be
set aside unless clearly erroneous, and due regard shall be given
to the opportunity of the trial court to judge the credibility of the
witnesses.” Id. (citation and internal quotation marks omitted).
¶32 	Here, 	the 	record 	demonstrates 	that 	the 	trial 	court
considered testimony by Christensen, Christensen’s accountant,
3. 	The 	court 	received 	only 	twenty 	pages 	of 	Bergmann’s
documentation 	into 	evidence, 	concluding 	that 	the 	rest 	was
inadmissible.

Bergmann v. Bergmann
20160217-CA 	17 	2018 UT App 130
and 	Bergmann 	regarding 	the 	amount 	Bergmann 	owed
Christensen, and it elected to disregard that testimony as not
credible. Bergmann has failed to challenge the court’s credibility
determination, 	much 	less 	demonstrate 	that 	it 	was 	clearly
erroneous, and we will “defer to that credibility determination.”
See id. ¶ 7. Moreover, although Bergmann asserts that the parties
mistakenly believed that he owed Christensen $170,000, the trial
court determined that the parties had “settled for $170,000,” i.e.,
that the $170,000 amount represented a compromise between the
parties. (Emphasis added.) Bergmann has not challenged this
finding on appeal, and he has therefore failed to demonstrate
that it is clearly erroneous. See Utah R. Civ. P. 52(a)(4) (“Findings
of fact . . . must not be set aside unless clearly erroneous, and the
reviewing 	court 	must 	give 	due 	regard 	to 	the 	trial 	court’s
opportunity 	to judge the 	credibility 	of 	the 	witnesses.”). 	By
extension, he has failed to demonstrate that the 2011 Agreement
was the product of a mutual mistake.
¶33 	In 	any 	event, 	the 	fact 	that 	the 	2011 	Agreement
contemplated that the parties could revisit the amount stated
indicates that the parties did not necessarily agree on the amount
Bergmann owed (as opposed to their definite agreement that
Bergmann did, in fact, owe Christensen something), but that
they settled on $170,000 for the time being, reserving the right to
revisit 	the 	issue 	in 	the 	future 	if 	they 	truly 	perceived 	that
Bergmann owed Christensen a different amount. Yet in the more
than three years between the execution of the 2011 Agreement
and Christensen’s filing for divorce, the parties never revisited
the issue, and both parties ultimately failed to present any
credible evidence in their respective efforts to alter the amount
Bergmann owed.
¶34 	Bergmann has not demonstrated that the 2011 Agreement
was the product of a mutual mistake as to the amount he owed.
Consequently, the trial court did not err in enforcing the 2011
Agreement, 	nor 	did 	it 	abuse 	its 	discretion 	in 	denying
Bergmann’s motion to alter or amend judgment.

Bergmann v. Bergmann
20160217-CA 	18 	2018 UT App 130
II. Attorney Fees
¶35 	Christensen contends that she “is entitled to the fees and
costs 	she 	has 	incurred 	in 	defending 	against 	[Bergmann’s]
appeal.” “Generally, when the trial court awards fees in a
domestic action to the party who then substantially prevails on
appeal, fees will also be awarded to that party on appeal.”
Osguthorpe v. Osguthorpe, 872 P.2d 1057, 1059 (Utah Ct. App.
1994) (citation and internal quotation marks omitted). The trial
court 	awarded 	Christensen 	her 	attorney 	fees 	incurred 	in
responding to Bergmann’s motion to alter or amend judgment,
concluding that Bergmann’s motion “did not materially advance
the matter and required a careful response from [Christensen’s]
counsel.”4 	Bergmann 	has 	not 	challenged 	the 	trial 	court’s
attorney-fee 	award, 	and 	Christensen 	correctly 	observes 	that
Bergmann’s arguments on appeal are “nearly identical” to those
he presented in his motion. Accordingly, because Christensen
has prevailed on appeal, we award Christensen her reasonable
attorney fees incurred in connection with this appeal in an
amount to be determined by the trial court on remand.5
CONCLUSION
¶36 	We affirm the trial court’s ruling that the 2011 Agreement
was enforceable and not the product of a mutual mistake. We
4. At trial, the court also awarded Christensen her attorney fees
incurred 	in 	responding 	to 	Bergmann’s 	motion 	in 	limine,
concluding that Bergmann’s motion in limine was “frivolous and
patently inappropriate.” The court determined that the parties
were otherwise responsible for their own attorney fees and costs.
5. Utah Rule of Appellate Procedure 34(a) provides that “if a
judgment or order is affirmed, costs shall be taxed against [the]
appellant unless otherwise ordered.” We therefore also award
Christensen her costs reasonably incurred on appeal.

Bergmann v. Bergmann
20160217-CA 	19 	2018 UT App 130
therefore conclude that the trial court did not abuse its discretion
in denying Bergmann’s motion to alter or amend judgment. We
remand this case to the trial court for the limited purpose of
calculating Christensen’s attorney fees reasonably incurred on
appeal.