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  

Being Fired is Insufficient Proof of Underemployment

Busche v. Busche, 2012 UT App 16, January 20, 2012

Parties divorced in January 2005.  Husband Petitioned to Modify the Decree because he had been fired from his employment.  At the time of trial on the modification, Husband was employed but at earning less.  The trial court found that because Husband was fired, that he was voluntarily underemployed.  The trial court also awarded Wife attorney fees.  Husband appealed.

The Court of Appeals found that evidence because a party was fired is insufficient to prove underemployment.  The Court is required to not only review the circumstances of a party’s loss of employment, but also their conduct after the end of the employment.  See U.C.A. § 78B-12-203 (7)(b) for imputation factors.  Because the trial court did not consider the imputation factors, the matter is Reversed and Remanded for further findings by the district court.  Court of Appeals noted later in the decision that in order to include income above regular employment, the income must be regular and consistent.

As to attorney fees, the Court found that the fees awarded for Wife’s substantially prevailing in an Order to Show Cause hearing was appropriate.  The trial court also awarded Wife attorney fees for the remainder of the case but reduced the amount.  However, the trial court made only cursory findings as to the reasonableness of the fees.  Court of Appeals Reversed and Remanded the award of fees and instructed the trial court make detailed findings to support the award of fees.

Full opinion available at: http://www.utcourts.gov/opinions/appopin/busche012012.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

Trial Court has Discretion to Determine the Weight of the Evidence

Richins v. Richins, 2010 UT App. 253, (Memorandum Decision, Utah Court of Appeals September 16, 2010).

Trial Court determined wife’s income based on a loan application The Court of Appeals determined that the trial court has discretion in assigning weight to various pieces of evidence.  In this case, the trial court gave more weight to the 2004 loan application (which on cross, Wife testified that she agreed with everything in the application), than to either a 2003 loan application in which Wife listed a lower income and her handwritten unsigned, and undated document created by Wife in anticipation of litigation.  The trial court has discretion to determine the weight of the evidence, and can only be overturned if it is clearly erroneous, the Court of Appeals Affirmed the trial court’s findings; particularly in light of the trial court’s additional findings that Wife had repeated lied to get what she wanted.

The Court additionally found that dividing the marital estate exactly in half meets the requirement that property distribution be equitable.

Lastly, because Husband was awarded attorney fees at trial and because he prevailed on appeal, his request for attorney fees for the appeal was granted.

Full Decision available at http://www.utcourts.gov/opinions/mds/richins091610.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

Alimony: Imputed Income Must Be Based on More Than Mere Conjecture

Hawks v. Hawks, 2009 UT App. 149, (Utah Court of Appeals, June 4, 2009).

Trial Court imputed Wife's income at minimum wage of part-time work. Husband appealed to the Utah Court of Appeals. The trial court must consider (1) the financial condition and needs of the recipient spouse, (2) the recipient's earning capacity, and (3) the ability of the payor spouse to provide support. When considering the recipient's earning capacity, the court may impute income. However, imputed income cannot be premised upon mere conjecture, but demands a careful and precise assessment requiring detailed findings. The trial court had determined Wife's need, Husband's ability to pay and based her capacity to earn on the difference between the two. Because the trial court had failed to make adequate findings their imputation of income was reversed and the Court found that there was nothing that suggested that wife was not able to work full time at minimum wage. As such she was imputed income of minimum wage on a full time basis. The Court than deducted the added amount from the alimony award.

Full Decision available at http://www.utcourts.gov/opinions/mds/hawks060409.pdf

Divorce: Give the Court Sufficient Evidence. Otherwise, Your Award Could Be Overturned.

Leppert v. Leppert ---P.3d ---, 2009 UT App. 10, (Utah Court of Appeals, January 16, 2009).

The parties were awarded a bifurcated divorce in 2004. A temporary support order was in place from 2004 until 2006 when husband requested that the court modify the temporary order, which resulted in trial. The parties appealed on several grounds.

Wife appealed the trial court findings as to imputed income, alimony, division of property, and division of debt. Husband appealed the trial court's decision to separate the debts as to the date of separation instead of the date of divorce.

Imputation of Income: The Court relied on the trial court's extensive findings as to wife's employability and estimated hourly rate. Because of the findings, the Court chose not to disturb the trial court's order as to imputation of income.

As to alimony, division of personal property, royalty payments, and division of debt, the Court found that the trial court failed to make adequate findings. Because of the lack of findings, the Appellate Court reversed the awards and remanded the issues for further findings.

Attorney fees: The Court remanded the award and noted that courts must base and award of attorney fees on the need of the moving party, the ability of the other to pay, and the reasonableness of the requested amount. The Court also remanded the issue of attorney fees because of the lack of findings of the trial court.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leppert011509.pdf