Alimony

Petrzelka v. Goodwin, 2020 UT App 34

Utah Court of Appeals

Attorneys: Ashley E. Bown; Tess A. Davis

District Court: Thomas Willmore (1st District)

Summary: The wife was 42 and the husband was 61 when they married. They lived in her house and kept their finances mostly separate during the marriage. The court was within its discretion to deny him alimony and to stop the division of her retirement account on the date of separation.

Holding (Alimony Denial): “If a court determines that the spouse requesting alimony is able to meet his or her own needs, the court ‘should not award alimony.’” See Dobson v. Dobson, 2012 UT App 373, ¶ 22. “All else being equal, a spouse who is capable of working ought to be ‘accountable for meeting [his or] her own needs to the extent’ of that capability.” Hansen v. Hansen, 2014 UT App 96, ¶ 9. The parties entered into the marriage late in life and Goodwin did not give up anything by entering into the marriage. There is no evidence that Goodwin did anything to improve Petrzelka’s income or education or her earning capacity. It was significant that the parties only shared minimal expenses during the marriage. The parties maintained separate standards of living during the marriage. Goodwin always lived above his means and carried a credit card balance before and during the marriage. The court properly attributed Goodwin’s social security, retirement, and 20 hours of work per week to his earning capacity. Despite his age, the court was within its discretion to find that he could still work and earn at least a minimal amount given his extensive job skills. He had already showed that he could volunteer in the community, traveling, hiking with dogs, and babysit grandchildren. “There is no statutory right to retirement in Utah.” In addition, Goodwin would receive a considerable amount from Petrzelka’s retirement account, which he did not contribute to in anyway.

Redden v. Redden, 2020 UT App 22

Utah Court of Appeals

Attorneys: Douglas L. Neeley; Jared L. Peterson

District Court: Robert P. Faust

Summary: The District Court was within its discretion to not include the husband’s student loan payments in his need for alimony payments. However, the court errored in not including his vehicle loans or credit card payments.

Holding (Alimony – Future Expense Student Loans): The court incorrectly excluded the monthly expense of the husband’s student loan debt. The student loans were incurred during the marriage. Although they would not come due until two (2) months after trial, they were certain to come due and there was not evidence that they would not come due and about the exact amount owing within two (2) months. Therefore, the student loan payments should have been considered in his monthly need and ability to pay alimony. Reversed and remanded.

Holding (Alimony – Vehicle Debts): Husband was assigned the debt for a marital car and motorcycle. The district court incorrectly excluded the payments from his ability to pay analysis on alimony. “[A]ll else being equal, marital debts generally constitute legitimate expenses affecting a payor spouse’s needs and ability to provide alimony.” See Connell v. Connell, 2010 UT App 139, ¶ 12; see also Willey v. Willey, 866 P.2d 547, 551 (Utah Ct. App. 1993).

Holding (Alimony – Credit Card Debt and Double Counting): The district court was within its discretion to exclude the husband’s credit card debt from his needs analysis and ability to pay alimony. The testimony about what was included in the credit card debt was unclear and it did include food and groceries as well as expenses for moving since the separation. The court could have excluded the debt because food and groceries were already included in his alimony budget or because it was not purely marital debt.

Holding: (Alimony Principles): The court gives a good recitation of the principles and reasoning for alimony.

Retirement Division

Petrzelka v. Goodwin, 2020 UT App 34

Utah Court of Appeals

Attorneys: Ashley E. Bown; Tess A. Davis

District Court: Thomas Willmore (1st District)

Summary: The wife was 42 and the husband was 61 when they married. They lived in her house and kept their finances mostly separate during the marriage. The court was within its discretion to deny him alimony and to stop the division of her retirement account on the date of separation.

Holding (Divide at Separation): The court was within its discretion to divide the retirement as of the date of separation, rather than divorce. “While a court should generally value the marital estate at the time of the divorce decree or trial, a court has broad discretion to value the parties’ marital assets at a different time, such as that of separation, if it determines that the circumstances so warrant.” See Rayner v. Rayner¸ 2013 UT App 269, ¶ 19. Petrzelka’s retirement continued to grow after the separation but Goodwin had been spending his down and he continued to overspend. So, it would have been inequitable to divide after those facts had occurred.

Child Support

Issertell v. Issertell, 2020 UT App 62

Utah Court of Appeals

Attorneys: Brian E. Arnold; Lauren Schultz; Ryan J. Stanger; Melissa A. Aland

District Court: John R. Morris (2nd District)

Summary: James lost his employment and could not find a new job despite applying for 800 jobs. The district court modified his child support and alimony finding him involuntarily unemployed. The decision is affirmed.

Holding (Involuntarily Unemployed): James was fired from L3 for comments he made about software changes and perceived ethics concerns. James has various disabilities related to his military career. He has 100% disability rating from the military. He participated in vocational-rehabilitation program with the VA, but struggled to maintain his studies. “A spouse is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or under employed.” Rayner v. Rayner, 2013 UT App 269, ¶ 7. “A person who has been terminated from a position may thereafter become voluntarily underemployed by not attempting in good faith to obtain new employment…or by refusing to accept suitable employment offers.” Busche v. Busche, 2012 UT App 16, ¶ 21. “Employment capacity involves consideration of the spouse’s abilities and limitations, qualifications, experience, and skills.” Id. James networked with old colleagues, applied for more than 800 jobs, and went to all interviews that he was granted. He could not find a new job at more than the imputed amount, despite having a Masters Degree, because of his disabilities. Despite having a Masters, the other side of the coin is that he did very badly at school, had several accommodations to help with his disabilities, and took several incompletes from classes that he did not finish because he could not keep up. The court properly took into consideration all sides of the issue. Tish decided at her peril to go for an all or nothing approach at the district level by asking that he be imputed to his L3 salary. She did not give an alternative argument about imputing him at less. So, she did not properly preserve the argument that if he could not earn the L3 salary, then at least he could earn something less.

Robertson v. Stevens, 2020 UT App 29

Utah Court of Appeals

Attorneys: David W. Read, Ben W. Lieberman

District Court: Judge Ernest W. Jones (Ogden)

Summary: Decree had a small non-disparagement clause included. Wife then contributed to a book and a blog that husband claimed had lies about their marriage and him. He petitioned to modify the decree to expand the non-disparagement clause. The District Court dismissed the petition to modify and the appellate court affirmed.

Holding (Modifying Non-Child Issues): The Court found that the only issue on appeal was whether or not the district court has continuing jurisdiction to modify or expand a stipulated, non-child-related nondisparagement clause contained in a final decree of divorce. The Court does not have subject matter jurisdiction over such matters. “After a judgement is entered, the district court’s power to modify the judgment is limited…the doctrine of res judicata applies in divorce actions.” However, in certain limited circumstances, usually defined by rule or statute, courts may reconsider an order after judgement. In family law, the court may modify provisions pertaining to child custody, child support, alimony, property distribution, and debts. See U.C.A. § 30-3-5(3). But no statute gives courts continuing jurisdiction to revisit stipulated nondisparagement clauses that do not concern children.

Common Law Marriage

Rivet v. Hoppie, 2020 UT App 21

Utah Court of Appeals

Attorneys: Marlin J. Grant, Paul H. Gosnell

District Court: Judge Brian G. Cannell (Logan)

Summary: The parties had a years long relationship and four proposals, but no formal marriage. The District Court’s decision to deny common law marriage was upheld for failure to show a holding out and uniform reputation.

Holding (Holding Out and Uniform Reputation): In order to establish common law marriage, a party must show, among other things, that the parties held themselves out as and have acquired a uniform and general reputation as husband and wife. U.C.A. § 30-1-4.5(1)(e). The parties cohabitated for six (6) years. The testimony conflicted about their reputation. Evidence was presented that the parties maintained separate financial accounts, that insurance documents showed Hoppie as single and Rivet as married, and that Hoppie’s tax filing status was single. The parties never referred to one another as “husband” or “wife,” they called each other by their first names. When witnesses were pressed for examples of ways they held themselves out as married, they could not provide even one. Witnesses testified that the knew that the parties were never married. Neither party wore wedding rings. One trust document referenced Rivet as “beneficiary.” “A partial or divided reputation of marriage is insufficient to meet the requirements of section 30-1-4.5(1)(e). See Hansen v. Hansen, 958 P.2d 931, 936 (Utah Ct. App. 1998).

Holding (Evidence): The Court properly excluded statements of friends as hearsay. The Court rescheduled several hearings so the attorney could call the witnesses, but only one was called. In addition, the Court properly excluded a previous attorney’s statements about what the other party has said as 408 negotiations, which are not admissible.

Civil Procedure

Peck v. Peck, 2020 UT App 14

Utah Court of Appeals

Attorneys: David Pedrazas, Marlin J. Grant

District Court: Thomas Willmore (Logan)

Summary: The Appellate Court upheld the District Court’s findings that the QDRO represented the parties’ intentions and that any mistake was legal and therefore needed to be appealed not moved under URCP 60(b), but reversed the court’s dismissal of the rule 60(b) motion on timeliness grounds.

Holding (Timeliness): Under Utah R. Civ. P. 60(b)(1), the court errored by not clarifying whether or not there was mistake or excusable neglect. This is important because if neither of these were present, then the Court should have looked to see if the attorney was grossly negligent under 60(b)(6). 60(b)(6) is the residuary clause and is the “catch all” provision of the rule. Therefore, it may not be relied upon if the asserted grounds fall within any other subsection of the rule. However, if the grounds do not fall within the other subsections, then the residuary clause may be considered. “Gross attorney negligence that is too egregious and exceptional to be encompassed by rule 60(b)(1) may be assessed under the residuary clause.”

Termination

In re G.J.P., 2020 UT 4

Supreme Court of Utah

Attorneys: Sean Reyes, Stanford E. Purser, Amy Jackson Leach, Brent M. Johnson, Thomas A. Luchs, Martha Pierce

Juvenile Court: Judge Julie Lund

Summary: Mother and father were unable to care for newborn child. DCFS took temporary custody and asked to appoint a guardian ad litem  (GAL) for the mother, who was found to be incompetent. The office of private guardian objected, but was appointed anyway. The Supreme Court reversed finding that it can be appointed to represent an adult, but it was not proper in this case.

Holding (OPG): The Court overstepped its bounds when it compelled the Office of Public Guardian to represent mother. The legislature made clear “OPG must have petitioned for or agreed in advance to the appointment before a court can draft it into service.” U.C.A. § 62A-14-105(1)(a)(ii). Therefore, because OPG did not agree here, the appointment was made in error. There are other pools from which the court may enlist a willing GAL and they should be pursued.

Holding (Appointment of GAL): The Juvenile Court has authority to appoint a GAL for the mother pursuant to Utah R. Civ. P. 17(b) because she was found to be incompetent. The court goes through all of the surrounding state case law as well as each statute regarding appointment of GAL for an adult and reaches the conclusion that the Juvenile Court does have this ability to ensure fairness for the mother.

Holding (Dicta re: Due Process): The Supreme Court sua sponte raises the “serious concern” about whether it would have been a violation of the mother’s right to due process to appoint her a guardian ad litem without her say, especially if the point was to override her decisions in the case. However, not having a guardian could also impact her due process rights in the case. But, the issue was not properly before the Supreme Court to address. There is a major difference if the role of the GAL is to sit next to mother and answer her questions versus to make decisions for her. “Our rules authorize courts to appoint a guardian ad litem but provide no guidance as to the role that the guardian can or will play in the litigation.” Furthermore, Utah R. Civ. P. 17(b) delineates no safeguards a court should employ before appointing a guardian for an adult.

Holding (Extraordinary Relief): The court finds that OPG can seek extraordinary relief because it lacks plain, speedy, and adequate remedy to address its appointment.

Holding (Guardian v. Guardian ad Litem): The court clarifies the difference between a guardian and a GAL. A general guardian is defined in detail in U.C.A. § 75-5-312(2) and is given broad general powers. However, a GAL is appointed for a specific matter in court. The role of the GAL is scattered throughout the code and in Utah R. Civ. P. 17. A GAL may be appointed even if a general guardian already exists for the person. While the rules and statute give guidance on GALs for minors, the guidance for representing adults is sparse.

J.R., v. State of Utah, 2019 UT App 208

Utah Court of Appeals

Attorneys: Margaret P. Lindsay, Sean Reyes, Carol LC Verdoia, John M. Peterson, Martha Pierce (GAL)

Summary: The Court upholds termination based on the argument that permanent custody would not give enough stability for this child with severe emotional disorders.

Holding: In re BTB, 2018 UT App 147 states that “An assessment of whether termination is strictly necessary requires courts to explore whether other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parents’ rights…If there is a practical way to keep parents involved in the children’s lives that is not contrary to the children’s best interests, a court should seriously consider such an option.” Further In re DRA, 2011 UT App 397, stated that the need for permanency “does not, by itself, establish that termination is in a particular child’s best interest.” However, in this case, the Court found that the child had significant emotional problems that made ongoing litigation detrimental. The child had Asperger’s and several other mental health disorders and had spent time in the Utah State Hospital for those disorders. DCFS argued that every hearing destabilized the child further. If the court were to award the foster parents permanent custody and the Mother visitation, the litigation could continue in the form of orders to show cause, motions, hearings, visitation compliance issues, requests for changes, etc. Because of the child’s special emotional needs in this case, it was strictly necessary to terminate parental rights so that the child could be permanently adopted.

J.F. v. E.F., 2019 UT App 204

Utah Court of Appeals

Attorneys: Scott L. Wiggins, Lisa Lokken, Joshua P. Eldredge, Martha Pierce (GAL)

District Court Judge: Julie V. Lund

Summary: Mother and father were on drugs, but father rehabilitated and obtained permeant custody of the child. Mother went on a criminal and drug infused bender with new boyfriend until both ended up incarcerated. The Juvenile Court did not employ a holistic test and examine the totality of the circumstances in terminating mom’s parental rights. Therefore, the case was remanded for a holistic analysis.

Holding (Best Interest): There are many factors to consider in the best interest analysis and the court improperly narrowed the analysis to the three factors in In re G.J.C., 2016 UT App 147. The court should consider the totality of the circumstances which can include the three factors in GJC, but should also include the following: the physical, mental, or emotional condition and needs of the child; the effort the parent has made to adjust their circumstances, conduct, or conditions to make restoring the parent-child relationship in the child’s best interest; the child’s bond with caregivers; the child’s need for permanency and stability; the potential risk of harm if returned to the parents’ care; parent’s demeanor, attitude toward his or her child, and attitude in fulfilling parental obligations; the benefits of the child continuing a relationship with an unfit parent even where reunification is not an option; the child’s prospects for adoption; the child’s preferences in some circumstances.

Holding (Strictly Necessary): The court must also find that termination is strictly necessary or whether other feasible options exist that could address the specific problems or issues facing the family.

Modification

Peeples v. Peeples, 2019 UT App 207

Utah Court of Appeals

Attorneys: D. Brian Boggess, Adam L. Peeples (pro se)

District Court Judge: Andrew H. Stone

Summary: Father was awarded primary physical custody and Mother received 5 of 14 overnights through a settlement, not trial. Mother asked to modify a decree of divorce to give her sole custody. The request was denied, and the denial was affirmed. One main issue was whether a high conflict case is in need of more stability and therefore the threshold of substantial change is higher.

Holding: (Standard for a Partially Litigated Case): The parents had been litigating custody in this case for over thirteen (13) years by the time of appeal and for four (4) years at the time of the decree. This was the second petition to modify, the first being dismissed for lack of change in circumstances. The Mother stated that dad was unstable in his home and work, that he had denied visits, and that he had been violent with someone else, which caused abuse to the children. The second custody evaluator recommended that the Mother be awarded sole custody. The second guardian ad litem disagreed and instead agreed with the first custody evaluator and the first guardian ad litem that custody should remain unchanged, with father being primary. Following the Mother’s case in chief, the Father’s oral motion to dismiss was granted based on a lack in change in circumstances. The Court mentioned that in this case of extreme instability, having a permanent order with a higher standard required for a change was important to provide some stability.

The reason for a substantial change in circumstance is first, to provide a decree of stability and second, res judicata in not overburdening the courts and to prevent a party from harassing the other through ongoing litigation. Previous cases have held that the res judicata element is at a particularly low ebb when a case results from a stipulation, because the best interest has not been determined by the court. This court holds that it is not so much a dichotomy between litigated and non-litigated case, but rather “courts should examine the origin of the order in question and analyze the extent to which the order-even if stipulated-reflects the result of robustly contested litigation aimed at ascertaining the best interest of the child.”

In this case, even though the parties stipulated shortly before trial, the issues could be considered litigated in terms of what level of standard to apply for modification. The parties had litigated the parent-time issues in both the protective order and temporary orders and had received best interest analysis from the custody evaluator and the guardian ad litem. Both parties were represented by counsel the entire time. Their final stipulation reflected these pieces of best interest analysis. So, although they did not ultimately go to trial, the child’s best interest had been litigated extensively for four years. This was not the sort of case where one party’s inequalities in negotiating power or financial resources resulted in a stipulation that was not in the children’s best interest. The court was right to not “water down” the standard for modification in this case, even though the case settled on the eve of trial.

The district court incorrectly said that the standard is higher for high conflict cases. This is not true, but this statement alone did not make the Court’s conclusions incorrect.

Holding (Facts did not constitute substantial change): 1) Father’s evictions, housing instability, and employment instability was part of the case before the Decree of Divorce was entered and was considered by the first custody evaluator. Therefore, there is no change in circumstance. 2) father’s failure to facilitate parent-time was an issue for enforcement. Denials of parent-time were not systematic, deliberate, or pathogenic. In Moody v. Moody, 715 P.2d 507 (Utah 1985), the court found that violations were so numerous and pervasive that the custody arrangement was not functioning and change in circumstance was warranted. See also, Huish v. Munro, 2008 UT App 283. In this case, though, the few violations did not make the decree unworkable. Lastly, there was insufficient evidence to show that Father had become violent as mother alleged.

Paternity

Mackley v. Openshaw; Barney v. Mackley/Barney, 2019 UT 74

Utah Supreme Court

Attorneys: Julie J. Nelson; Eric G. Maxfield; Timothy M. Bagshaw; Lorie D. Fowlke; Sara Pfrommer; Ron D. Wilkinson

District Court Judge: Darold J. McDade

Summary: Mother had a child with Mackey, out of wedlock. Initially, Husband signed a voluntary denial of paternity form. But, then, biological father, Mackey, filed to recognize his paternity, and then the husband filed for declaration that he was the legal father, asking to rescind his signature on the denial of paternity. The District Court allowed Husband to rescind his denial and dismissed Mackey’s claim of paternity. The Supreme Court reverses stating that the law around Mackey’s standing claim has been decided in other companion cases and the District Court was wrong to let Husband rescind his signature on the denial of paternity.

Holding (Rescind Denial of Paternity): The court should not have allowed the husband to rescind his signature on the denial of paternity form. Any mistake went to the legal consequences of signing the document, not the facts forming the basis for it. UCA § 78B-15-306(1)(a) allows for a period of rescission of signing a declaration of paternity or denial of paternity under the basis of fraud, duress, or material mistake of fact. The opinion goes through the standards for these three reasons. The mistake of fact issue relates to mistake of fact, not mistake of law. “Each party has the burden to read and understand the terms of a contract before he or she affixes his or her signature to it. A party may not sign a contract and thereafter assert ignorance or failure to read the contract as a defense.” Citing John Call Eng’g, Inc., 743 P.2d at 1208.

Castro v. Lemus, 2019 UT 71 (Companion case is Olguin v. Anderton, 2019 UT 73)

Supreme Court of Utah

Attorneys: Troy L. Booher, Julie J. Nelson, Michael J. Teter, Dustin A. Hardy, Aaron M. Drake

District Court Judge: Lynn W. Davis

Summary: The district court’s dismissal of bio father’s petition for paternity was reversed under the new interpretation of the UUPA. The bio father does have standing.

Holding: Under the Utah Uniform Parentage Act (UUPA), the married spouse is presumed to be the parent of the child. However, section 78B-15-602 of the UUPA grants standing to Castro (the biological “alleged” father) and subsection 607(1) does not revoke that standing when the child has a presumed father. The court goes through a lengthy statutory analysis, which is most helpful to read directly from the opinion.

Olguin v. Anderton, 2019 UT 73 (Companion case is Castro v. Lemus, 2019 UT 71)

Supreme Court of Utah

Attorneys: Michael D. Harrington, Jarell A. Dillman, Troy L. Booher, Julie J. Nelson, John D. Hancock

District Court Judge: Samuel P. Chiara

Summary: Mother had a child out of wedlock with Olguin. Olguin, the alleged father, filed a petition for paternity. The mother moved to dismissed, but the court denied the motion. The appellate court affirms the denial. Olguin has standing to assert paternity.

Holding (alleged fathers have standing): Consistent with Castro, from the same day, the court holds that the UUPA allows alleged fathers to having standing to assert paternity in a case, even when the mother was married.

UCCJEA

Bradshaw v. Pelley-Whelan, 2019 UT App 201

Utah Court of Appeals

Attorneys: Theodore R. Weckel, Jennifer L. Falk, Cassie J. Medura, Jarrod H. Jennings

District Court Judge: Royal I. Hansen

Summary: The district court found that it did not have jurisdiction over a child, that the home state was still California, and that the child’s time in Utah was a temporary absence from California, thereby dismissing Bradshaw’s case in Utah. The dismissal was affirmed.

Holding (Temporary Absence under UCCJEA): “Facts are stubborn things.” The court goes through a detailed analysis of many facts about where Bradshaw lived, since the parties owned multiple homes. Bradshaw did own a home in Utah, but two in California. Bradshaw had obtained a Utah driver’s license and voter registration only after litigation began. Although Bradshaw filed taxes in Utah for two years, Bradshaw used a California driver’s license to sign them. Bradshaw could only prove being in Utah for only 55 days in 2017. Bradshaw filed a protective order to try and get emergency jurisdiction, but the PO was dismissed. The majority of the child’s belongings were still in CA and the child was enrolled in ballet and had her doctor in CA. Therefore, the child was only temporarily in Utah and the home state was California. The court goes through a basic statutory analysis under the UCCJEA under U.C.A. § 78B-13-201(1) and 78B-13-102(7) “temporary absences are credited toward the consecutive six-month period required for a home state determination.” The court also correctly applied a “totality of the circumstances” test from Garba v. Ndiaya, 132 A.3d 908 (Md. Ct. Spec. App. 2016).

Child Name Change

Velasquez v. Chavez, 2019 UT App 185

Utah Court of Appeals

Attorneys: Marsha Lang; Michael Studebaker

Summary:  The district court added mother’s last name with a hyphen, dad appeals. Affirmed.

Holding: Mother and father had a brief relationship that resulted in minor child. While pregnant, mother returned to the relationship with her other child’s father. When child was born, she left the father line blank, but gave the child the father’s last name. Shortly thereafter, she filed a petition for paternity and asked to change the child’s name to her last name, Velasquez. The Court held a trial by proffer and ended up hyphenating the name, starting with mother’s name, to wit, Velasquez-Chavez. Father appealed. But the decision was affirmed. The test is under Hamby v. Jacobson, 769 P.2d 273, 277 (Utah Ct. App. 1989). The court should determine the best interest of the child by looking at the six factors: 1) the child’s preference in light of the child’s age and experience, 2) the effect of a name change on the development and preservation of the child’s relationship with each parent, 3) the length of time a child has used a name, 4) the difficulties, harassment, or embarrassment of a child may experience from bearing the present or proposed name, 5) the possibility that a different name may cause insecurity and lack of identity, and 6) the motive or interests of the custodial parent. It was not improper for the court to mention other cultures that use hyphenated names in observing that the child would not be embarrassed because other children do it frequently.

Holding (sexism): “Thirty years ago, this court firmly rejected relying on the outdated notion ‘that a father has a protectible or primary interest in having his children bear his surname.’ Hamby v. Jacobson, 769 P.2d 273, 277 (Utah Ct. App. 1989). As this court recognized, ‘a paternal preference for a child’s surname is improper, just as would be a preference for the maternal surname.’”

Child Support

Burggraaf v. Burggraaf, 2019 UT App 195

Utah Court of Appeals

Attorneys: Julie Nelson; Erin Hull; Benjamin Larsen; Suzanne Marelius

Summary: Husband and wife were married for 22 years. Husband went to medical school but failed the last board and did not retake it. He was also fired from his residency. He then worked odd jobs after that making at most $1,200 per month. Mom was a stay at home mom and piano teacher. The court rightfully found that father left his career voluntarily and was underemployed. The court also rightfully awarded child support arrears for the 3 ½ separation. The alimony needs factors for the father were remanded to properly give father credit for his student loan payments.

Holding (Imputed Income): The court first notes many reasons that the district court could not rely on father for his income details because of his lack of candor with wife and the court. The court did not impute a medical doctor’s salary, because it was too speculative. The court used father’s actual earnings to put together an estimate of what he could potentially earn working full steam and imputed him to $3,421 per month. It was within the court’s discretion to average three of the father’s highest earning years under the circumstances where he was frequently underemployed. U.C.A. § 78B-12-203 is the statute for imputing income. It says that when possible, the income should be computed on an annual basis.” However, it was not possible in this case because of his sporadic working in the past. See Dole v. Dole, 2018 UT App 195 (upholding an imputation when the actual income of a spouse is impossible to determine due to his or her dishonest to the court, to unaccountable income, and to his or her failure and refusal to obtain traditional employment.

Holding (Arrears Since Separation): The court was right in awarding arrearages during the 3 ½ years of separation even though there was not a temporary order.

Holding (Self-Employed Income): The court took the number the husband brought in and divided it by the time he had the business. The court did not deduct the claimed business expenses because the husband did not provide any proof of them. This was affirmed. The husband had the burden of proving up the claimed necessary expenses.

Holding (Joint or Sole Calculator): For purposes of calculating child support, the designation of joint or sole physical custody is not as important as whether the custody arrangement exceeds the statutory threshold for joint physical custody. See Stephens v. Stephens, 2018 UT App 196. District courts are given broad discretion in decisions regarding child support. Anderson v. Anderson, 2018 UT App 19. However, if a court deviates from the statutory guidelines, it must make a finding that following them “would be unjust, inappropriate, or not in the best interest of a child.” Gore v. Grant, 2015 UT App 113. Here the district court properly used the sole custody worksheet where three of the children were actually with father less than sole custody and the other children had a schedule of joint (Dani’s note: it all looks like sole custody to me, so that is sort of weird here).

Debts

Burggraaf v. Burggraaf, 2019 UT App 195

Utah Court of Appeals

Attorneys: Julie Nelson; Erin Hull; Benjamin Larsen; Suzanne Marelius

Summary: Summary: Husband and wife were married for 22 years. Husband went to medical school but failed the last board and did not retake it. He was also fired from his residency. He then worked odd jobs after that making at most $1,200 per month. Mom was a stay at home mom and piano teacher. The court rightfully found that father left his career voluntarily and was underemployed. The court also rightfully awarded child support arrears for the 3 ½ separation. The alimony needs factors for the father were remanded to properly give father credit for his student loan payments.

Holding (Student Loans): The husband had $260,000 in medical school debt, despite never becoming a doctor. He claimed that only $59,551.34 was for school and the rest was for the family expenses. The court gave husband credit for $3,308 because he could show a bank statement from the student loan account to the family amount for that amount. “Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other…contracted or incurred during the marriage, except family expenses.” U.C.A. § 30-2-5. “There is no fixed formula for determining the division of debts in a divorce action. We require only that the district court’s allocation of debt be based on adequate factual findings.” Dahl v. Dahl, 2015 UT 79. Where the husband incurred the loans and then unilaterally decided to not work as a doctor and could only prove that he spend $3,308 on the family, it was proper to award his student loans to him outright.

Alimony

Burggraaf v. Burggraaf, 2019 UT App 195

Utah Court of Appeals

Attorneys: Julie Nelson; Erin Hull; Benjamin Larsen; Suzanne Marelius

Summary: Summary: Husband and wife were married for 22 years. Husband went to medical school but failed the last board and did not retake it. He was also fired from his residency. He then worked odd jobs after that making at most $1,200 per month. Mom was a stay at home mom and piano teacher. The court rightfully found that father left his career voluntarily and was underemployed. The court also rightfully awarded child support arrears for the 3 ½ separation. The alimony needs factors for the father were remanded to properly give father credit for his student loan payments.

Holding (Needs): The issue of student loan payments is remanded. The court did not include them and also did not include his master’s degree education payments saying it was discretionary. However, the student loan payments were only deferred because of the master’s classes. Therefore, if he was not incurring new education expenses, he would be incurring student loan payments. Therefore, one or the other should be included.

Danielle Hawkes

Danielle Hawkes

Partner at the Salt Lake Lawyers
Danielle Hawkes

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