Pankhurst v. Pankhurst ( 2022 )

2022 UT App 36THE UTAH COURT OF APPEALS
KRISTINA PANKHURST,
Appellee,
v.
GRANT PANKHURST,
Appellant.
Opinion
No. 20200772-CA
Filed March 24, 2022
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 184901527
Steven B. Wall, Attorney for Appellant
Justin G. Berube, Attorney for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Grant Pankhurst appeals the district court’s orders
regarding child support and alimony. We affirm.
BACKGROUND
¶2 Grant and Kristina Pankhurst married in 2011, and Kristina
filed for divorce in August 2018. Just prior to filing her petition,
Kristina was visiting her mother in Alaska with the parties’ three
children. During the visit, Kristina learned information about
Grant that prompted her to file for divorce. Grant, who works in
the oil industry, travels extensively for work and was traveling at
Pankhurst v. Pankhurst
the time. Because she needed financial help from her family,
Kristina decided to stay in Alaska permanently.
¶3 The parties each filed a motion for temporary orders. A
commissioner issued a recommendation for temporary orders
granting the parties joint physical custody and requiring Kristina
to bring the children back to Utah. Kristina objected to the
commissioner’s recommendation and asked the district court to
stay it. The court granted that request, and Kristina continued to
live in Alaska with the children.
¶4 In December 2019, the parties reached a stipulation
regarding custody of the children. They agreed that Kristina
would have primary physical custody of the children and could
remain in Alaska. They also agreed that if the parties lived within
thirty minutes of each other or if Grant were to live within thirty
minutes of one or more of the children’s schools, he could exercise
parent-time according to the joint custody schedule outlined in
Utah Code section 30-3-35.1. However, until that time, Grant
could exercise parent-time up to ten overnights per month at his
option. By the time of trial in June 2020, Grant had not relocated
and had not exercised any overnight parent-time in 2020.
¶5 The parties were unable to reach an agreement concerning,
among other things, child support or alimony, and the court held
a trial to decide those issues. In its pre-trial order, the court
directed the parties to provide updated financial declarations
with supporting documentation, copies of their federal tax returns
for the past two years, copies of any W-2s and 1099s for the past
two years, and copies of their three most recent pay stubs. Grant
filed a financial declaration asserting that his gross monthly
income was $4,784.01 and that his monthly expenses (less his
temporary child support and alimony obligations) were $5,844.56.
However, Grant “failed to provide the vast majority of the
required supporting documentation for his Financial Declaration
and only filed a single pay stub and one 2019 W2.”
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¶6 The parties’ tax returns for years 2013–2017 had been
submitted to the court and showed that Grant earned $9,299.84
per month in 2013, $9,434.21 per month in 2014, $10,604.87 per
month in 2015, $8,334.00 per month in 2016, and $8,347.00 per
month in 2017. Grant did not provide tax returns for 2018 or 2019.
However, he testified that his income had decreased, due to a
downturn in the oil industry, in the time since the divorce
commenced. He did not provide an explanation for the decline in
the industry between August 2018 and early 2020 but did assert
that there had been a recent drop in demand for oil in the wake of
the COVID-19 pandemic, which began only a few months prior to
trial. He asserted that he had taken a 15% pay cut and was forced
to take extended time off. He claimed that based on his income in
2020 up to the time of trial, he expected to earn only $4,784 per
month. However, he did not provide supporting documentation
for any of these claims.
¶7 At trial, a neighbor and friend of the parties testified that
Grant had told him if he were to get divorced, “his employer
would be . . . willing to and be able to manipulate his pay or pay
stubs to show he was making less money than he really was.”
Additionally, Kristina testified that Grant “always was able to
choose his schedule” “depending on how much he wanted to
bring in.” She also testified that during their marriage, Grant’s
schedule and income had fluctuated from month to month but
that his annual income stayed mostly consistent and he averaged
$8,000 to $10,000 per month.
¶8 The court found that if there was any decrease in Grant’s
income, such a decrease was “temporary.” The court also found
that “Grant failed to provide the vast majority of the required
supporting documentation for his Financial Declaration,” only
filing “a single pay stub and one 2019 W2.” “Grant did not
provide any bank statements, credit card statements, copies of
bills or obligation[s], or any other record that would substantiate
the monthly expenses Grant report[ed] on his Financial
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Declaration.” “Grant testified that he had access to his 2018 and
2019 Federal tax returns” as well as “all of his pay stubs,” but he
did not provide them to the court. “Grant did not provide any
testimony as to any circumstance that would have reasonably
prevented him from accessing and providing the documents . . . .”
¶9 Because it considered Grant’s alleged income change to be
temporary, the court found that “Grant’s income should be
imputed at $9,095.47 per month” based on his “historical income”
calculated from his 2013–2017 federal tax returns. As to Grant’s
monthly expenses, it concluded that based on the evidence before
it, “Grant has reasonable monthly expenses of $3,505.06,
excluding any child support [or alimony] obligation.” The court
also explained that its “findings . . . regarding Grant’s income and
monthly expenses” were not only based on the evidence available
but were also appropriate as a rule 37(b) sanction “for Grant’s
failure to provide the required documentation.”
¶10 Although the parties’ stipulation allowed Grant up to ten
overnights with the children per month, the court determined that
a sole custody child support worksheet was appropriate for
calculating child support “[b]ased on the stipulated parent time
schedule and based on Kristina’s testimony that Grant has not
exercised a single overnight parent time in 2020.” The court
observed that “Grant did not dispute that he has not taken a single
overnight parent time visit with the minor children in 2020.”
Thus, the court ordered Grant to pay $1,625 per month in child
support.
¶11 The court found Kristina’s gross monthly income to be
$3,040 and that she incurred reasonable monthly expenses of
$5,624. The court found that Grant earned a net monthly income
of $6,821.25. The court reduced Grant’s net income by his $1,625
child support obligation and reduced Kristina’s need by the same
amount. Subtracting Grant’s reasonable monthly expenses of
$3,505.06 from his remaining income, the court determined that
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Grant had the ability to pay $1,691.19 per month and ordered him
to pay Kristina $1,500 per month in alimony. The court did not
make explicit findings as to Kristina’s net monthly income or her
total unmet need.
¶12 Grant now appeals the district court’s child support and
alimony orders.
ISSUES AND STANDARDS OF REVIEW
¶13 Grant asserts that the district court exceeded its discretion
by (1) imputing income to him based on his historical income
rather than using his current reduced income; (2) ordering him to
pay alimony in excess of Kristina’s need; and (3) using a sole
custody worksheet to calculate child support.1 “We review the
district court’s decisions regarding child support and alimony
under the abuse of discretion standard.” Anderson v. Anderson,
2018 UT App 19, ¶ 21, 414 P.3d 1069 (quotation simplified).
“Courts have broad discretion to select an appropriate method of
assessing a spouse’s income, including determinations of income
imputation.” Bond v. Bond, 2018 UT App 38, ¶ 6, 420 P.3d 53(quotation simplified). Appellants bear “a heavy burden, and we
can properly find abuse only if no reasonable person would take
the view adopted by the trial court.” Goggin v. Goggin, 2013 UT 16,
¶ 26, 299 P.3d 1079 (quotation simplified).
1. Grant also asserts that he was forced into a disadvantaged
custody arrangement by Kristina’s move to Alaska. However, all
issues relating to custody were resolved by the parties’
stipulation. Had Grant wished to adjudicate the objections he now
raises on appeal, he should not have agreed to the stipulation, but
should have instead taken the relocation and child custody issues
to trial. He cannot now rely on the relocation as a basis to
challenge the court’s custody and child support orders.
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ANALYSIS
I. Income
¶14 Grant asserts that the district court erred by imputing
income to him based on his historical income, rather than what he
claimed were more current income figures, and by doing so
without addressing whether he was voluntarily underemployed.
According to Grant, district courts do not have the discretion “to
disregard current evidence as to change[d] income in the absence
of a finding ‘that the parent is voluntarily unemployed or
underemployed.’” (Quoting Hall v. Hall, 858 P.2d 1018, 1024 (Utah
Ct. App. 1993) (quotation simplified).) In support of this assertion,
Grant relies on holdings from this court that relied on a now-
outdated version of the Utah Code. See Hill v. Hill, 869 P.2d 963,
965 (Utah Ct. App. 1994); Hall, 858 P.2d at 1024. Prior to 2007, the
Utah Code required courts to make a finding that a spouse is
voluntarily unemployed or underemployed before imputing
income. See Rayner v. Rayner, 2013 UT App 269, ¶ 10, 316 P.3d 455.
However, the current version of the Utah Code requires only that
the judge “enter[] findings of fact as to the evidentiary basis for
the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis
2018); see also Rayner, 2013 UT App 269, ¶ 10. Thus, while
“voluntary unemployment or underemployment may be relevant
when considering whether a party is concealing income or
shirking in his or her efforts to earn income, a finding of voluntary
unemployment or underemployment is not a prerequisite to
imputing income.” Reller v. Argenziano, 2015 UT App 241, ¶ 33,
360 P.3d 768 (emphasis added) (quotation simplified). Rather,
“the focus of the imputation analysis is . . . on the detailed findings
of fact necessary to support a decision to impute income rather
than the ultimate fact or legal conclusion of voluntary
unemployment or underemployment.” Id. (quotation simplified).
¶15 Beyond asserting that the district court was required to
make a finding of voluntary underemployment before imputing
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income—an assertion based on an erroneous reading of the law—
Grant does not raise any adequate challenge to the court’s
findings supporting its imputation of income. The only finding
Grant challenges is the court’s finding that his change in income
was temporary. But “[a] party challenging a district court’s factual
findings on appeal bears a heavy burden of persuasion” in
demonstrating that the court’s findings are “clearly erroneous.”
Dahl v. Dahl, 2015 UT 79, ¶ 149, 459 P.3d 276. And a party “will
almost certainly fail to carry its burden of persuasion on appeal if
it fails to marshal the evidence sufficient to overcome the healthy
dose of deference owed to factual findings.” Id. (quotation
simplified). Here, ample evidence supported a finding that the
change was temporary, including the neighbor’s testimony that
Grant had expressed his intent to artificially deflate his earnings
and Kristina’s testimony that fluctuations in Grant’s income had
occurred throughout their marriage and that they had historically
been temporary. Grant does not address any of this evidence.
Moreover, he does not point us to any evidence indicating that the
change was permanent.2 He has therefore failed to carry his
burden of persuasion on appeal to show that the court’s finding
was clearly erroneous.
¶16 In any event, other findings support the court’s decision to
impute income, which findings Grant has made no attempt to
challenge or even identify in his briefing on appeal. The district
court found that, in violation of the court’s pre-trial disclosure
order, Grant failed to provide adequate supporting
documentation of his current income. Without that supporting
documentation, the court had no way to accurately calculate
Grant’s income at the time of trial and certainly did not abuse its
2. Although Grant repeatedly claimed that the change was
permanent, the only reason he cited for the change was the
pandemic, which had not even begun until a few months before
trial and the effects of which do not seem to have permanently
decreased the price of oil.
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discretion in taking into account Grant’s failure to submit
supporting evidence in weighing his testimony at trial. Moreover,
Grant does not challenge the court’s determination that imputing
income to him using his historical income was an appropriate
sanction “for Grant’s failure to provide the required
documentation.” See Utah R. Civ. P. 37(b). And “we will not
reverse a ruling of the district court that rests on independent
alternative grounds where the appellant challenges only one of
those grounds.” Allen v. Allen, 2021 UT App 20, ¶ 31, 483 P.3d 730(quotation simplified).
¶17 In short, Grant has failed to demonstrate that the district
court abused its broad discretion in imputing his income.
II. Alimony
¶18 As to alimony, Grant asserts that the district court
exceeded its discretion in awarding Kristina $1,500 per month in
alimony because that amount exceeded her monthly need. Grant
is correct that “regardless of the payor spouse’s ability to pay
more, the recipient spouse’s demonstrated need must constitute
the maximum permissible alimony award.” Roberts v. Roberts,
2014 UT App 211, ¶ 14, 335 P.3d 378 (quotation simplified).
However, Grant miscalculates Kristina’s monthly need.
¶19 Grant asserts that Kristina’s unmet need is only $959—the
amount of her gross income ($3,040) and child support ($1,625)
subtracted from her monthly need ($5,624), and that the court
could therefore not order alimony in excess of $959. But courts are
generally required to take parties’ tax obligations into
consideration when calculating alimony. Wadsworth v. Wadsworth,
2022 UT App 28, ¶ 105. In particular, where the court has used
one party’s net income to calculate need or ability to pay, it is an
abuse of discretion for the court to then rely on the other party’s
gross income to calculate their need or ability to pay. See id.; see
also Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 45, 58, 402 P.3d
219. Here, the court used Grant’s net income to calculate his
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ability to pay, yet Grant would have had the court use Kristina’s
gross income to calculate her need.
¶20 Although the court did not make a finding regarding
Kristina’s net income, it is apparent from its order and the record
that it used her net income to assess her need and that her need
did not exceed the alimony award. See Shuman v. Shuman, 2017 UT
App 192, ¶ 6, 406 P.3d 258 (“So long as the steps by which the
ultimate conclusion on each factual issue was reached are
apparent, a trial court may make findings, credibility
determinations, or other assessments without detailing its
justification for finding particular evidence more credible or
persuasive than other evidence supporting a different outcome.”
(quotation simplified)). Evidence presented at trial indicated that
Kristina’s net income was $2,442.64, and that evidence was
uncontradicted so far as we are aware. Using that number,
Kristina’s unmet need is $1,556.36. The court clearly intended to
rely on Kristina’s net income to assess her need because it relied
on Grant’s net income to assess his ability to pay. See Wadsworth,
2022 UT App 28, ¶ 105. Thus, the district court did not order
alimony in excess of Kristina’s need, and its $1,500 per month
alimony award was not an abuse of discretion.
III. Child Support
¶21 Finally, Grant takes issue with the district court’s decision
to calculate child support based on a sole custody worksheet
rather than a joint custody worksheet. Grant asserts that the court
abused its discretion in calculating child support utilizing a sole
custody child support worksheet rather than a joint custody child
support worksheet because the parties’ custody order awarded
him overnights for more than 30% of the year. When parties are
awarded joint custody, a court must either “use a joint custody
child support worksheet” or “make findings supporting its
deviation.” See Spall-Goldsmith v. Goldsmith, 2012 UT App 302, ¶ 8,
288 P.3d 1105. The Utah Code defines joint physical custody to
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mean that “the child stays with each parent overnight for more
than 30% of the year, and both parents contribute to the expenses
of the child in addition to paying child support.” Utah Code Ann.
§ 78B-12-102(15) (LexisNexis Supp. 2021). Thus, to challenge a
court’s child support calculation, a party must show that both
elements of joint physical custody are satisfied. See Spall-
Goldsmith, 2012 UT App 302, ¶¶ 9–11.
¶22 Grant’s entire argument on this point consists of a single
paragraph, in which he asserts that “[t]hirty percent of overnights
meets the burden for joint physical custody.” But Grant does not
grapple with the district court’s finding that he had not actually
exercised any overnights in 2020, nor does he separately address
the second element—whether he contributes to the expenses of
the children in addition to paying child support. While courts
have sometimes considered an award of a particular number of
overnights to indicate that a parent is contributing to the
“overnight expenses” of their children during their parent-time,
see Rehn v. Rehn, 1999 UT App 41, ¶ 17, 974 P.2d 306, that is not
necessarily dispositive of the contribution question, see Spall-
Goldsmith, 2012 UT App 302, ¶¶ 4–5, 10–11 (upholding the district
court’s decision to use a sole custody child support worksheet,
despite the father having 44% of overnights in the year, where the
father was allowed to deduct extracurricular expenses from his
child support payments and failed to “advance any argument that
he has satisfied the second element of joint physical custody by
contributing to [the child’s] expenses in addition to paying child
support”). Here, we think it notable that Grant’s exercise of
parent-time is entirely optional and that he showed no inclination,
prior to trial, to exercise his option at all, let alone in a manner that
would result in him contributing significantly to the children’s
overnight expenses.
¶23 Rather than awarding Grant a certain amount of parent-
time, the parties’ stipulation places an upper limit on his monthly
parent-time. While Grant has the option to “exercise parent time
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up to 10 days/nights every month,” the schedule for those
overnights is not set and exercising them is completely within his
discretion. (Emphasis added.) If Grant wants to exercise parent-
time, he must give Kristina twenty-one days’ written notice or he
waives his parent-time. During the approximately five months
immediately preceding trial, Grant had not exercised any
overnight parent-time with the children. Given that Grant
assumed no physical care of the children, there is no basis to
presume that he contributed anything significant beyond child
support to their expenses during that time or that he was likely to
exercise his parent-time in a manner that would lead him to do so
in the future. And Grant has pointed us to no evidence suggesting
otherwise. In short, Grant “fails to advance any argument that he
has satisfied the second element of joint physical custody by
contributing to [his children’s] expenses in addition to paying
child support.” See id. ¶ 11. Thus, we conclude that the court did
not exceed its discretion in using a sole custody child support
worksheet to calculate Grant’s child support.
CONCLUSION
¶24 Because Grant has failed to demonstrate that the district
court exceeded its discretion in imputing his income, calculating
alimony, or calculating child support, we affirm the district
court’s alimony and child support orders.
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