Christensen v. Christensen
400 P.3d 1219
Utah Ct. App.2017Background
- Brent and Elena divorced in 2012; court ordered Brent to pay $1,200/month alimony and $548/month child support; Elena was imputed income at divorce and had been a stay-at-home parent.
- Brent retired in Sept. 2014, began receiving a reduced pension and stopped paying support; Elena received about $800/month from his pension.
- Brent petitioned to modify/terminate alimony and child support, claiming (1) Elena was cohabiting with a boyfriend (to terminate alimony) and (2) his retirement materially reduced his income.
- Trial court found Elena shared a residence and had an intimate relationship with her boyfriend but did not cohabit (relying in part on whether they held themselves out as married and whether they shared expenses); it refused to terminate alimony.
- The court found Brent capable of employment, imputed income ($4,700/month), reduced future alimony to $400/month (offsetting Elena’s $800 pension share), denied retroactive reduction, denied modification of child support, and entered a judgment for outstanding arrears (~$19,043.61).
Issues
| Issue | Brent's Argument | Elena's Argument | Held |
|---|---|---|---|
| Whether Elena’s living with boyfriend constituted "cohabitation" terminating alimony | Evidence of shared bedroom, sexual relations, shared residency and Elena paying rent showed cohabitation | Elena argued she did not hold herself out as spouse, did not share expenses/assets; thus no cohabitation | Court’s cohabitation finding vacated and remanded because trial court relied on an irrelevant factor (holding out/reputation); other factors must be reweighed on remand |
| Whether Brent’s retirement justified modifying alimony (change of circumstances) | Retirement materially decreased income and justified reduction/termination | Trial court found expense reduction and no substantial unforeseen change; Elena opposed modification | Trial court did not abuse discretion: decline to find a substantial change in circumstances warranting alimony modification |
| Whether Brent is voluntarily unemployed and whether income may be imputed | Brent claimed medical/psychological reasons, desire to retire and be stay-at-home parent | Trial court relied on medical testimony that Brent could work after rehabilitation and on his history/education; Elena argued imputation appropriate | Court’s findings that Brent is capable of work and voluntarily unemployed and the imputation to $4,700/month were not clearly erroneous; affirmed |
| Whether alimony modification must be retroactive and whether denial of retroactivity was an abuse of discretion | Brent argued statute requires retroactive modification to service date and trial court’s denial created an unfair windfall to Elena | Elena and trial court viewed retroactivity as discretionary and noted Brent’s assets and voluntary unemployment | Retroactivity under statute is discretionary; trial court did not abuse discretion denying retroactive relief given imputation and discretionary factors (affirmed) |
Key Cases Cited
- Myers v. Myers, 266 P.3d 806 (Utah 2011) (defining hallmarks of cohabitation for terminating alimony)
- Rayner v. Rayner, 316 P.3d 455 (Utah Ct. App. 2013) (trial court must make detailed findings when imputing income)
- Hagan v. Hagan, 810 P.2d 478 (Utah Ct. App. 1991) (appellant must marshal evidence to challenge factual findings)
- Wall v. Wall, 157 P.3d 341 (Utah Ct. App. 2007) (statutory scheme allows but does not require retroactive modification of support)
- McPherson v. McPherson, 265 P.3d 839 (Utah Ct. App. 2011) (trial courts have considerable discretion on alimony and may impute income to deter voluntary underemployment)