Needs of Recipient Spouse is the Maximum Alimony Award.

Dobson v. Dobson, 2012 UT App. 373, Utah Court of Appeals, December 28, 2012

Wife was awarded $800/ month alimony for 20 years as well as physical and legal custody of her two children.

Wife argued that the Court should not have considered child support as income in calculating alimony.  The Court of Appeals found that is best practice to calculate child support and alimony separately.  However, combining the calculations is not an abuse of discretion, particularly when Wife included the children’s expenses in her monthly need on her financial declaration.

Wife also argued that the trial court failed to consider Husband’s increased ability to pay as his child support obligation decreases.  Wife failed to demonstrate how Husband’s increased ability to pay affects her needs.  Because as Wife’s child support will decrease so should her obligations (i.e. no longer having to pay for the adult child). There was no abuse in discretion in the court’s consideration of Wife’s decrease in need.  Further, income to wife was correctly imputed because of Wife’s advanced decree and the testimony of the employability expert.

The Court of Appeals Reversed and Remanded the alimony award to give proper consideration to the standard of living during the marriage.  The trial court reduced wife’s expenses without adequate explanation and is instructed to supply additional findings as to why it eliminated some of Wife’s claimed expenses as listed on her financial declaration.  Also remanded to correct the mathematical error in Father’s income.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/dobson122812.pdf  

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.”

Full Decision available at  http://www.utcourts.gov/opinions/appopin/sellers123010.pdf

Alimony Must be Based on Sufficient Findings and Alimony Cannot Exceed Needs

Fish v. Fish, 2010 UT App. 292, (Utah Court of Appeals October 21, 2010).

Wife was awarded $800 per month in alimony.  Husband appealed.  He argued that the trial court had insufficient evidence to make findings as to the parties’ ability to earn and their needs.  The Court of Appeals found that testimony alone is sufficient evidence for imputation of income, and that Husband’s enrollment in a Technical College did not preclude imputation of income.  If a party already has basic job skills, he cannot rely on the schooling to avoid the imputation of income.  However, the findings of the trial court did not support the level of income imputed to husband as required by U.C.A. 78B-12-203(7)(b) (2008).  Without such findings, the trial court cannot impute income.  Additionally, the trial court made no findings as to Husband’s ability to pay and therefore the alimony award was an abuse of discretion and reversed.  The Court also found ability to earn cannot be based on monthly income alone, but must be based on the U.C.A. 78B-12-203(7)(b) factors, reversing the trial court’s finding that wife’s ability to earn directly correlates with her current income. 

Lastly, simply because the parties combined needs exceed their combined incomes does not prove that the parties’ standard of living is not commensurate with the standard of living at the time of the marriage, it simply proves that the cost to sustain two households is greater than the cost to sustain one.

Full Decision available at http://www.utcourts.gov/opinions/appopin/fish102110.pdf

Must Do More Than Merely State Income of the Payor Spouse to be Entitled to Alimony

Connell v. Connell, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Divorce Decree ordred Husband was ordered to pay $230 alimony and $1797 per month in child support.  Alimony was to terminate when wife obtained full time work.  Wife appeals the Alimony award, the award of attorney fees, and the failure of the trial court to order reimbursement of the payments made toward the marital home.

As to the termination of alimony, the Court of Appeals found a court must do more than simply evaluate the payor spouse’s income.  They must also make findings as to the payor’s needs and expenditures as the trial court did in this case.  The trial court additionally correctly imputed Husband at the income of a previous job, because his loss of the job was based on his voluntary failure to comply with employment requirements.  The court’s ruling as to alimony is affirmed. 

As to attorney fees, this matter is Reversed and Remanded to determine what fees are suit fees (incurred establish an order) and which are enforcement fees (incurred to enforce orders).  Fees to establish an order are based on ability to pay, but enforcement fees are based on unnecessarily incurred fees because of another’s actions. 

As to the mortgage payment, Husband filed for bankruptcy and the bankruptcy proceedings attached the home and took jurisdiction over the home.  The Court affirmed the trial court’s find that it did not have jurisdiction to grant Wife’s request.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/connell052710.pdf

Failure to Marshal=Dismissal; Inheritance=Separate Property; Encouragement≠Enhancement; Repository≠Comingling; Forgery=Unjust Enrichment;

Kimball v. Kimball, 2009 UT App. 233, (Utah Court of Appeals, August 27, 2009).

Prior to the case analysis, the Court summarized the marshaling requirement. In short, when marshaling the evidence the appellant must provide all evidence in support of the trial court’s ruling, and then must identify which evidence carries the “fatal flaw.” Failure marshal results in dismissal. When reviewing the property distribution, the Court that although husband had encouraged wife to wait for a better offer on her inherited stock (which resulted more money for wife), such encouragement was not sufficient enhancement to overcome the separate property presumption on inheritance. Similarly, placing of proceeds from the sale of stock into a marital account does not automatically change separate property into marital property. Particularly if the property is adequately traced out and removed from the joint account. Husband forged several checks drawn against the stock account and could not prove that he was not unjustly enriched (because he cashed the checks without wife’s permission, the trial court inferred that he was enriched). Finally, Husband requested payment of his attorney fees. Wife argued that he had no need because his family had paid for his attorney (in divorce, to be entitled to attorney fees, one must show need, the other’s ability to pay, and reasonableness of the fees). The trial court agreed with Wife, however it made inadequate findings. The Court of Appeals reversed and remanded this issue. Moreover, the appellate court directed that the trial court found need and ability to pay, the court need only find what award would be reasonable, not that the fees incurred are reasonable.

Full Decision available at http://www.utcourts.gov/opinions/appopin/kimball082709.pdf

Income to Which a Payor Spouse Would Receive But For His Bad Acts May Be Imputed To Him

Young v. Young, ---P.3d---, 2009 UT App. 3, (Utah Court of Appeals, January 2, 2009).

Darrel Edward Young (Husband) was incarcerated at the time he became eligible for social security benefits. Because of Husband’s incarceration for a felony conviction he was not permitted to receive his benefits. However, Willa Mae Young (Wife), Darrell’s ex-wife filed for increase in spousal support in Utah’s First District Court. Wife claimed that husband’s recent eligibility for benefits was a substantial change in circumstances and that the benefit amount that he would receive should be calculated as income. The trial court agreed and changed the spousal support from $50 to $600, based on the eligibility. Husband appealed to the Utah Court of Appeals.

The Appellate Court affirmed the trial court's opinion. The Court found that the receipt of retirement benefits or social security can constitute a change in circumstances sufficient for a modification. Additionally, but for husband’s bad acts leading to his incarceration, he would receive the Social Security benefit. Lastly, based on the Husband’s imputed income and now the new income that he would be receiving from Social Security, his income is now 70% of the parties’ gross income and as such he was ordered to pay 70% of the combined attorney fees.

Full Decision available at http://www.utcourts.gov/opinions/appopin/young010209.pdf