Busche v. Busche
2012 UT App 16
| Utah Ct. App. | 2012Background
- Married 1995, divorced Jan 7, 2005; five children; divorce decree set $1766 child support and $1545 alimony ($3311 total)
- Husband lost Tahitian Noni employment Jan 2005; later worked as contract employee at $5000/month, then stopped in early 2006
- October 2006 Husband began SupraNaturals job at $4583.33/month
- June 2007 bench trial on modification petition; court found reduced income due to voluntary underemployment, no substantial change
- Court awarded Wife $3324.71 for OSC attorney fees; awarded $16,675.29 (total $20,000) but reduced from requested fees for other proceedings
- Appellate court reverses the underemployment finding based on termination alone; remands to consider post-termination conduct and proper imputation analysis; affirms OSC fee award, remands rest for detailed findings and possible additional evidence
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a substantial change in circumstances warranting modification | Husband’s income drop was substantial | District court correctly found no substantial change due to voluntary underemployment | Remanded for reconsideration of substantial change and voluntariness |
| Whether Husband was voluntarily underemployed for imputation | Court should impute full prior salary | Termination for cause does not automatically equal voluntary underemployment | Remanded to conduct Hall factors and imputation analysis based on post-termination conduct |
| Whether the imputation analysis used the correct standard and statute version | 2006 version governs imputation | Apply correct statutory framework and Hall factors | Remand to apply proper imputation standards and conduct, with relevant factors |
| Attorney fees award—whether findings support $20,000 total and OSC vs trial fees | Wife entitled to greater fees; court erred | Award reasonable; some fees unnecessarily awarded | Affirm OSC fee, remand for separate findings on remaining fees and methods to determine need/pay |
| Whether Husband’s equity in marital home can be considered income for fees | Equity could be income to satisfy fees | Home equity not income for fees | Court may consider but not treat home equity as income; remand for proper findings |
Key Cases Cited
- Young v. Young, 201 P.3d 301 (Utah 2009) (abuse of discretion standard; modification context guidance)
- Bolliger v. Bolliger, 997 P.2d 903 (Utah 2000) (substantial change in circumstances; imputation framework)
- Connell v. Connell, 233 P.3d 836 (Utah 2010) (two-step analysis for attorney-fee awards; need/ability to pay; enforcement fees)
- In re J.R.T., 70 P.3d 474 (Colo. 2003) (voluntary underemployment determined by post-termination conduct; imputation relevance)
- Hall v. Hall, 858 P.2d 1018 (Utah Ct. App. 1993) (factors for voluntariness and underemployment; employment opportunities as factor)
- Griffith v. Griffith, 959 P.2d 1015 (Utah Ct. App. 1998) (imputation purpose to prevent shirking; income approximation)