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  

Joint Physical Custody Has Two Requirements: 1) More than 30% Overnights and 2) Contribution to the Expenses of the Child in Addition to Paying Child Support.

Spall-Goldsmith v. Goldsmith, 2012 UT 302, Utah Court of Appeals, October 25, 2012

Parties were divorced and Wife was awarded primary physical custody and the parties were awarded joint-physical custody of the minor child.  Wife was also awarded child support based on the sole custody child support worksheet.  Husband, who was awarded more than 30% of overnights appealed.

The Court of Appeals found that Husband did have more than 30% of the overnights, however, joint-physical custody requires more than 30% of overnights, but also requires that both parents contribute to the expenses for the child in addition to paying child support.  See U.C.A. §78B-12-102(14).

Affirmed.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/goldsmith102512.pdf

Extra-Curricular Activities Must Be Budgeted for in Child Support

Davis v. Davis, 2011 UT App 311, Utah Court of Appeals September 9, 2011

Husband and wife divorced in 2002.  The Decree was modified in 2005 because of Husband’s loss of employment and bankruptcy.  In 2008, Wife filed a Petition to Modify because Father’s failure to pay credit card costs had resulted in the creditors seeking payment from her thus lowering her credit score and making it more difficult for Wife to obtain additional credit.  Wife sought to have the child tax benefits awarded to her because of Father’s failure to pay the credit card debt.  She further sought an order requiring Father to pay half of the children’s extracurricular costs, and that the Court modify child support commensurate with the parties’ incomes.  The court granted wife’s Petition.  Father appealed.

The Court of Appeals reversed the trial court on the issue of the past due debt because it should have been dealt with in the 2005 modification.  The Court further reversed on the issue of extracurricular expenses and found that they are not the type of expenses that are required to be equally divided but must be budgeted for with child support or separate agreements to share those costs can be made.

As to child support the Court affirmed the lower court because the issue was not properly preserved by Father.

Full opinion available at:  http://www.utcourts.gov/opinions/appopin/davis090911.pdf

Remarriage Does Not Bar Retroactive Alimony

Ostermiller v. Ostermiller, 2010 UT 43, (Utah Supreme Court May 28, 2010).

In the final order of the District Court, Husband was ordered to pay retroactive alimony to Wife even though she had remarried by the time the award was made.  The district court also denied Wife a portion of the rental income acquired during separation, and denied Father child support during the temporary separation.  Both appealed to the Utah Court of Appeals.  The court of appeals affirmed the denial of the rental payments and the child support for failure to marshal.  The court of appeals also reversed the award of retroactive alimony because wife was remarried when the award was made.  Both parties requested certiorari to the Supreme Court

The Supreme Court Reversed the court of appeals and found that remarriage does not bar a retroactive alimony award.  Further, it affirmed the court of appeals denial of wife’s claim for rental income because of her failure to marshal.  Lastly, the Court Reversed and Remanded husband’s child support claims, because the hearing in which the district court ruled on his child support claim was not the type of hearing where a transcript is made nor would such a transcript be helpful to deciding the issue of child support.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Ostermiller052810.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

Custody, Petition to Modify: No Bifurcated Trial for Petitions to Modify

Doyle v. Doyle, 2009 UT App. 306, (Utah Court of Appeals, October 29, 2009).

Husband and wife’s stipulation included an automatic change to custody if mother were to move back to Salt Lake City. When mother moved back, father filed and the court granted, a motion amending the decree invalidating the automatic change because it denied him notice and opportunity for a hearing before changing custody. Wife filed a petition to modify. The trial court denied Husband’s motion for a bifurcated trial on the issues of substantial change and best interests. At trial the trial court found a substantial change because mother had moved back to SLC, and that the custody order was uncertain. The trial court also found that it was in the son’s best interests to have mother as his custodian. Father appealed.

The Appellate Court affirmed the trial court and found that bifurcated trials would violate the preference for judicial and fiscal economy. Additionally, as is often the case, separate trials would have been duplicative requiring the parties to present the same evidence on two occasions. Additionally, the Court affirmed the trial court’s ultimate findings as to the best interests of the child because father failed to marshal the evidence.

Father also argued that Mother was not entitled to child support because she did not request it. The Court disagreed, and affirmed the decision of the trial court finding that child support follows the child, and that based on a trial court’s ability to enforce equity it can make awards even where none is requested.

Note: The trial court incorrectly used the new CS table when calculating CS. Because there was a CS order prior to December 31, 2007, the old table should have been used. Remanded as to this issue.

Full Decision available http://www.utcourts.gov/opinions/appopin/doyle102909.pdf

Child Support: Child Support Follows the Child

Hansen v. Hansen, 2009 UT App. 152, (Utah Court of Appeals, June 11, 2009).

Trial Court denied Father's Petition to Modify Child Support. Father appealed to the Utah Court of Appeals. Father argued that his daughter was living in a transitional home supported by Volunteers of America. Since support should follow the child, he argued that both parties should pay support to VoA. The Court found that this statute only applied to when a child moves to the other parent, a relative, or the state. In this case, the child is not in the custody of the state for two reasons: (1) Volunteers of America is not run by the state, but by volunteers and (2) Mother is still responsible for the child and has retained custody. The Mother remains liable for the support of the child, including the responsibility to pay school fees, buy clothing, transport the child to the doctor and counseling appointments, attend to her medical needs and pay her medical expenses. The Child also stays frequently in the Mother's home. The Court affirmed; finding that since custody had not changed, child support should not change.

Note: Mother asked for attorney fees. However, Mother failed to set forth a specific legal basis for the award of fees. No attorney fees awarded.

Full Decision available at http://www.utcourts.gov/opinions/mds/hansen061109.pdf