Hansen v. Hansen
325 P.3d 864
Utah Ct. App.2014Background
- Wife filed for divorce in May 2009; two-day trial in July 2010; divorce decree entered Feb. 11, 2011 ordering Husband to pay $1,000/month alimony.
- On modify petition (Apr. 4, 2011) Husband alleged disability; SSDI award later (June 17, 2012) of $488/month.
- Trial court, applying 25% tax rate, recalculated Wife's net and found unmet need of $1,898 and Husband's surplus of $350.
- To equalize the parties’ standards of living, trial court reduced alimony to $872/month, retroactive to Husband’s disability date, and granted a $4,500 credit for a four-and-a-half month period of nonpayment during surgeries.
- Court noted retroactivity date ambiguity and remanded for clarification.
- Husband appeals challenging payability, tax rate, SSDI treatment, retirement income, and retroactivity order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity date for modified alimony. | Husband argues the order is retroactive to the disability date. | Court erred in retroactivity determination and should clarify date. | Remand for clarity on retroactive date. |
| Adequacy of consideration of ability to pay and Wife's needs. | Husband claims court exceeded ability-to-pay; equals needs. | Court properly equalized shortfalls given combined income insufficiency. | Within discretion to equalize shortfalls. |
| Use of 25% tax rate vs 20%. | Different tax rate than in original decree unfair. | Higher tax rate applied to both parties; not inequitable. | Not reversible; rate permissible. |
| Inclusion of SSDI in Husband's income. | SSDI should not count as income for alimony. | Income sources, including SSDI, may be considered. | Correct to include SSDI in income. |
| Alimony paid out of retirement benefits already shared. | Wife already receives half retirement; alimony from retirement improper. | Retirement sharing does not negate needs; not an abuse of discretion. | Accepted; court may require sharing the shortfall. |
Key Cases Cited
- Fish v. Fish, 2010 UT App 292 (Utah Court of Appeals, 2010) (requires consideration of payor's ability and recipient's need in alimony)
- Sellers v. Sellers, 2010 UT App 393 (Utah Court of Appeals, 2010) (equalization of income when combined income cannot meet needs)
- McPherson v. McPherson, 2011 UT App 382 (Utah Court of Appeals, 2011) (discretion to adjust alimony to achieve equalization; justify disproportionate shortfall)
- Jensen v. Jensen, 2008 UT App 392 (Utah Court of Appeals, 2008) (recipient's demonstrated need sets maximum permissible alimony absent other circumstances)
- Kidd v. Kidd, 2014 UT App 26 (Utah Court of Appeals, 2014) (permitted projections of need; expenses may be based on future planning)
- Wilde v. Wilde, 2001 UT App 318 (Utah Court of Appeals, 2001) (consideration of all income sources for alimony)
- Olsen v. Olsen, 2007 UT App 296 (Utah Court of Appeals, 2007) (distinction between marital property division and income for alimony)
- Bolliger v. Bolliger, 2000 UT App 47 (Utah Court of Appeals, 2000) (retirement benefits can be considered in alimony)