463 P.3d 698
Utah Ct. App.2020Background:
- James and Tish divorced in 2015 after 22 years; at divorce James earned $8,670/month and was ordered to pay $1,497/month child support and $2,500/month alimony.
- James was fired from L-3 in summer 2016, thereafter applied for over 800 jobs and attended interviews but obtained no permanent employment offers.
- James is rated 100% disabled by the VA and receives $3,698.32/month in VA disability benefits; he participated in VA vocational rehabilitation and briefly worked part‑time at a library as a feasibility placement and later pursued a master’s degree but struggled academically due to processing/attention limitations.
- James petitioned to modify the divorce decree; after an evidentiary trial the district court found a substantial unforeseeable change, concluded James was involuntarily unemployed, declined to impute his prior L-3 income, and applied equalization of poverty.
- The court reduced child support to $796/month and alimony to $131/month; Tish appealed, arguing the court should have imputed income (including treating the spouse’s contributions as income/gifts) and that other income should have been considered for alimony.
Issues:
| Issue | Tish's Argument | James's Argument | Held |
|---|---|---|---|
| Whether the court should impute income to James | Court should impute James’s prior L-3 income (or alternatively at least federal minimum wage for 40 hrs) | James is involuntarily unemployed, has VA‑rated disabilities, applied in good faith for many jobs, and lacks capacity to earn prior income | Court did not err: declined to impute prior income based on disabilities and extensive job‑search efforts; affirmed |
| Whether gifts/financial support from James’s current wife should be treated as income for alimony | Wife’s payments are gifts that increase James’s ability to pay alimony and should be imputed as income | Contributions are not guaranteed, were treated as shared household support, and there was evidence of an agreement to repay | Court properly considered household sharing but did not treat past contributions as perpetual imputed income; affirmed |
| Whether Tish’s proposed lower imputation (e.g., minimum wage) was preserved for appeal | (on appeal) argues lower imputation was appropriate | Trial-level record shows Tish only sought imputation up to prior L-3 income and never proposed lower levels | Unpreserved: appellate argument for minimum‑wage imputation was not raised below and is not considered |
Key Cases Cited
- Gardner v. Gardner, 452 P.3d 1134 (Utah 2019) (district court awarded broad discretion in adjusting financial interests and imputation determinations)
- Pulham v. Kirsling, 443 P.3d 1217 (Utah 2019) (if imputing income, court must base imputation on evidence of employment potential and probable earnings)
- Hartvigsen v. Hartvigsen, 437 P.3d 1257 (Utah Ct. App. 2018) (voluntary unemployment finding remains relevant to imputation inquiry)
- Rayner v. Rayner, 316 P.3d 455 (Utah Ct. App. 2013) (imputation analysis considers post‑termination efforts and employment capacity)
- Busche v. Busche, 272 P.3d 748 (Utah Ct. App. 2012) (involuntarily terminated spouse can later be found voluntarily underemployed if not making good‑faith efforts)
- Vanderzon v. Vanderzon, 402 P.3d 219 (Utah Ct. App. 2017) (preservation rules require specific imputation theories be raised below)
- State v. Johnson, 416 P.3d 443 (Utah 2017) (issues not raised in the trial court are typically not preserved for appeal)
- Keyes v. Keyes, 351 P.3d 90 (Utah Ct. App. 2015) (equalization of poverty explained as remedy when neither party can meet demonstrated needs)
- Jones v. Cook, 223 P.2d 423 (Utah 1950) (gift requires clear and unmistakable donor intent)
- Burggraaf v. Burggraaf, 455 P.3d 1071 (Utah Ct. App. 2019) (bench‑trial appellate review standard: view evidence in light most favorable to district court)