Wednesday, January 19, 2011

Court Always Retains Ability to Modify Alimony and Alimony Award Can Never Exceed the Recipients Needs

Sellers v. Sellers, 2010 UT App 393 (Utah Court of Appeals December 30, 2010).

In the Decree of Divorce the trial court ordered that neither party was awarded alimony either at the time of the Decree or in the future.  Wife appealed.  Wife further appealed the finding that Husband owed no alimony.  The basis of her appeal was that the trial court made insufficient findings as to Husband’s ability to earn.  (Wife appealed on additional grounds, but failed to properly preserve those grounds at the trial level).  

The Court of Appeals determined that the regardless of the trial court’s order, the court may always modify alimony based on statute, UCA 30-3-5(8); and no divorce decree can change the statute.  As to the zero alimony award, it was shown that wife had sufficient income to meet her needs and did not qualify for alimony; the Court need not determine a party’s ability to pay if the other party’s needs are already being met.  “Regardless of the ability of the payor spouse to pay more, the recipient souse’s need must constitute the maximum permissible alimony award.”

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