Christensen v. Christensen , 2017 Utah App. LEXIS 120 ( 2017 )

2017 UT App 120THE UTAH COURT OF APPEALS
ELENA KAY CHRISTENSEN,
Appellee,
v.
BRENT CHRISTENSEN,
Appellant.
Opinion
No. 20150994-CA
Filed July 20, 2017
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 094901718
Randall W. Richards, Attorney for Appellant
Elena Kay Christensen, Appellee Pro Se
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
VOROS, Judge:
¶1 Brent Christensen and Elena Kay Christensen (now Elena
Watts) divorced in 2012. 1 Brent has since retired and Elena has
shared a residence with another man. Based on these and other
factors, Brent filed a petition to modify his child support and
alimony obligations. The trial court ruled that Elena was not
cohabiting and thus refused to terminate alimony. The court also
reduced the alimony payment, but prospectively only; refused to
modify child support; and awarded Elena a money judgment for
1. In cases where the parties shared a last name, our practice is to
refer to them by their first name, with this court intending no
disrespect by the apparent informality. Earhart v. Earhart, 2015
UT App 308, ¶ 2 n.1, 365 P.3d 719.
Christensen v. Christensen
arrearages. Because the court considered a legally irrelevant
factor in determining cohabitation, we remand for further
findings on that question. In all other respects, we affirm.
BACKGROUND
¶2 Brent and Elena divorced in October 2012. The trial court
awarded the parties joint legal and physical custody of their four
children. At the time of the divorce, Brent was employed as a
school teacher with a monthly income of $4,749.15. Elena had
stayed at home to care for the children during the marriage, but
the court found her capable of employment and imputed to her a
monthly income of $1,365. The court ordered Brent to pay $1,200
per month in alimony and $548 per month in child support.
When Brent retired in September 2014, he stopped paying
alimony and child support, and Elena began receiving about
$800 per month as a share of his pension.
¶3 The following year Brent filed a petition to modify
alimony and child support. He sought to terminate alimony on
the ground that Elena was cohabiting with her boyfriend. He
also claimed a material change in his income due to retirement.
Specifically, he maintained that he was unable to work due to
stress from the divorce and was thereby forced to retire. He
asserted that he had a constitutional right to retire, as friends his
age had done, and that he wanted to be a stay-at-home parent. In
response, Elena sought an award of unpaid alimony and child
support. 2
2. Brent had previously filed a petition for an order to show
cause for Elena’s failure to pay her portion of the children’s
health insurance premiums and had obtained a judgment
against her for $1,674.90. Elena requests that we vacate the
$1,674.90 judgment against her for insurance premium arrears.
(continued…)
20150994-CA 2 2017 UT App 120Christensen v. Christensen
¶4 Following a hearing, the trial court ruled on the petition
to modify. The court denied Brent’s request to terminate alimony
on the basis of Elena’s cohabitation. The court found that the
evidence failed to establish cohabitation; the court noted
particularly that Elena did not hold herself out as the spouse of
her boyfriend or share living expenses, assets, or bank accounts
with him.
¶5 The court also rejected Brent’s claim that his retirement
justified a termination or reduction in alimony. The court found
that Brent “is physically and mentally able to work and provide
for the family” and that, while his income had decreased, so had
his expenses. The court therefore set his monthly income at
$4,700 “consistent with his historical earnings.”
¶6 However, the court reduced Brent’s alimony obligation by
the amount of the monthly retirement payments to Elena from
Brent’s pension, setting alimony at $400 ($1200 less $800) for
future payments only.
¶7 The court then denied Brent’s petition to modify child
support. The court ruled that child support would remain at
$548 per month, finding that amount to be “appropriate based
on the income of each parent.”
(…continued)
However, this claim of error is not properly before us because
Elena “failed to bring [it] either by way of a cross-appeal or by
separate petition for interlocutory appeal.” See State v. Coble,
2010 UT App 98, ¶ 10, 232 P.3d 538 (“‘[Litigants must] cross-
appeal or cross-petition if they wish to attack a judgment of a
lower court for the purpose of enlarging their own rights or
lessening the rights of their opponent.’” (alteration in original)
(quoting State v. South, 924 P.2d 354, 355 (Utah 1996))). We
therefore do not address it further.
20150994-CA 3 2017 UT App 120Christensen v. Christensen
¶8 Finally, the court entered judgment against Brent in the
amount of $19,043.61 for alimony and child support arrears as of
October 1, 2015.
ISSUES AND STANDARDS OF REVIEW
¶9 Brent asserts four claims of error on appeal. First, he
contends that the trial court erred in finding that the evidence
did not establish that Elena cohabited with another man.
“Whether cohabitation exists is a mixed question of fact and law.
While we defer to the trial court’s factual findings unless they
are shown to be clearly erroneous, we review its ultimate
conclusion for correctness.” Myers v. Myers (Myers I), 2010 UT
App 74, ¶ 10, 231 P.3d 815 (citations and internal quotation
marks omitted), aff’d, Myers v. Myers (Myers II), 2011 UT 65, 266
P.3d 806.
¶10 Second, Brent contends that the trial court erred in finding
him capable of employment. A “[trial] court’s determination that
[a party] is capable of employment is within the sound discretion
of the trial court since the court is in an advantaged position to
weigh the evidence, determine the persuasive value of the
evidence, and make determinations based on the evidence.”
Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223. Brent also
challenges the related findings that no substantial change in
circumstances warranted modification of alimony, that he is
voluntarily unemployed, and that his employment capacity and
earning potential support imputation of income. “The
determination of the trial court that there [has or has not] been a
substantial change of circumstances . . . is presumed valid, and
we review the ruling under an abuse of discretion standard.”
Busche v. Busche, 2012 UT App 16, ¶ 7, 272 P.3d 748 (alteration
and omission in original) (citation and internal quotation marks
omitted). We also review the trial court’s finding of voluntary
unemployment or underemployment and its calculation of
imputed income for an abuse of discretion. See Rayner v. Rayner,
20150994-CA 4 2017 UT App 120Christensen v. Christensen
2013 UT App 269, ¶ 4, 316 P.3d 455. “We will not disturb a trial
court’s findings of fact unless they are clearly erroneous, that is,
unless they are in conflict with the clear weight of the evidence,
or this court has a definite and firm conviction that a mistake has
been made.” Pope v. Pope, 2017 UT App 24, ¶ 4, 392 P.3d 886(citation and internal quotation marks omitted).
¶11 Third, Brent contends that the trial court erred in
declining to apply the modification of the alimony award
retroactively. “A [trial] court’s determination regarding the
retroactive modification of a spousal support obligation is
reviewed for an abuse of discretion.” McPherson v. McPherson,
2011 UT App 382, ¶ 12, 265 P.3d 839.
¶12 Fourth, Brent contends that the trial court erred in its
child support calculation. We review decisions on child support
under the abuse of discretion standard. Andrus v. Andrus, 2007
UT App 291, ¶ 9, 169 P.3d 754.
ANALYSIS
I. Cohabitation
¶13 Brent contends that the trial court erred in ruling the
evidence of shared common residency and consistent sexual
relations did not establish cohabitation. Specifically, he argues
that “the evidence established that [Elena] was living together
with her boyfriend as a family, sharing the same bedroom and
engaging in normal sexual relations.” He also alleges that the
trial court “ignored [Elena’s admission] that she paid rent and all
of the expenses for food and everything” in the household.
Finally, he argues that the fact that Elena and her boyfriend did
not hold themselves out to be husband and wife has never been
a criterion for determining cohabitation.
¶14 “Any order of the court that a party pay alimony to a
former spouse terminates upon establishment by the party
20150994-CA 5 2017 UT App 120Christensen v. Christensen
paying alimony that the former spouse is cohabitating with
another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2013).
Utah courts have not delineated a list of required elements for
cohabitation, but instead have identified “general hallmarks of
marriage (and thus cohabitation).” Myers II, 2011 UT 65, ¶ 24,
266 P.3d 806. “Those hallmarks include a shared residence, an
intimate relationship, and a common household involving
shared expenses and shared decisions.” Id. Other relevant
considerations include “the length and continuity of the
relationship, the amount of time the couple spends together, the
nature of the activities the couple engages in, and whether the
couple spends vacations and holidays together.” Id. ¶ 24 n.3.
However, whether the couple has a reputation as being married,
or hold themselves out as being married, is not a relevant
consideration in determining cohabitation for purposes of
section 30-3-5(10). Id. ¶ 24 n.4. 3
¶15 Here, Elena acknowledged that she was sharing a
bedroom with her boyfriend. However, when asked whether she
was cohabiting with him, she responded that after she was
evicted from her home, she “had nowhere to go so [she] moved
in at [his] address.” She signed a written “Living Arrangement
Agreement” in which she agreed to pay $500 per month “to help
with the payment of the mortgage and the cost of utilities as part
of [her] contribution of living expenses” for herself and her four
children.
¶16 The trial court noted that Elena admitted that “she shares
common residency with a man and that they have sexual
relations.” The court reasoned that although these factors are
relevant, “they do not satisfy the definition of cohabitation”
3. In contrast, the fact that a couple “hold themselves out as and
have acquired a uniform and general reputation as” spouses is a
badge of a valid—though unsolemnized—marriage. See Utah
Code Ann. § 30-1-4.5(1)(e) (LexisNexis 2012).
20150994-CA 6 2017 UT App 120Christensen v. Christensen
under Myers I, 2010 UT App 74, 231 P.3d 815, and related cases.
The court then considered the following additional factors. First,
it found “no evidence that [Elena] held herself out as the wife
[of] the boyfriend.” The court also found that she and the
boyfriend “did not have a reputation as husband and wife.”
Finally, it found no evidence that she “shared living expenses,
assets, or bank accounts with the boyfriend.” Relying on these
factors, the court concluded that the “evidence is insufficient to
establish cohabitation as outlined in [Myers I].” It therefore
denied Brent’s petition to terminate alimony on the basis of
cohabitation.
¶17 First, as noted above, Brent is correct that whether two
people hold themselves out, or have a reputation, as being
married plays no part in the cohabitation analysis for purposes
of determining whether alimony must be terminated. See Myers
II, 2011 UT 65, ¶ 24 n.4. Thus, the trial court erred in relying on
this factor. However, the court correctly found that no evidence
supported a finding that Elena and her boyfriend share living
expenses, assets, or bank accounts. On the contrary, she paid
him room and board pursuant to the terms of a written
agreement.
¶18 In sum, Elena and her boyfriend share a residence and an
intimate relationship but not living expenses. But the record
does not show evidence of the other pertinent considerations
outlined above. For example, the record does not show that they
jointly make life decisions. Nor does the record show the length
of their relationship, the amount of time they spend together, or
whether they spend vacations and holidays together.
See id. ¶ 24 n.3 (noting that “these considerations [are] not
prerequisites or requirements,” but are relevant to the “broader
picture” of “whether a relationship resembles that of a married
couple”). Thus, on this record we cannot say that the trial court’s
erroneous reliance on the couple’s reputation was harmless.
Accordingly, we remand this issue to the trial court to rebalance
the factors and determine in the first instance whether the
20150994-CA 7 2017 UT App 120Christensen v. Christensen
evidence shows that Elena and her boyfriend are cohabiting
under section 30-3-5(10) as construed in Myers II.
II. Employment
¶19 Brent next contends that the trial court erred in finding
that he was capable of full-time work. He argues that because
the trial court did not “make any findings supporting that he
was employable,” it should not have imputed “additional
income to his $3,037 per month retirement benefit.” He further
argues that the trial court should have considered that he
wanted to be a stay-at-home father, that “his medical
practitioner advised retirement,” and that he was “forced to
retire due to physical and psychological problems.”
¶20 After entering a divorce decree, “[t]he court has
continuing jurisdiction to make substantive changes and new
orders regarding alimony based on a substantial material change
in circumstances not foreseeable at the time of the divorce.” Utah
Code Ann. § 30-3-5(8)(i)(i) (LexisNexis 2013). Thus, to succeed on
a petition to modify, “the moving party must first show that a
substantial material change of circumstance has occurred since
the entry of the decree and [second, that the change was] not
contemplated in the decree itself.” Diener v. Diener, 2004 UT App
314, ¶ 7, 98 P.3d 1178 (alteration in original) (citation and
internal quotation marks omitted). The “party seeking
modification . . . has the burden of showing a substantial change
in circumstances.” Id. (omission in original) (citation and internal
quotation marks omitted).
¶21 The trial court must first determine whether a substantial
change in circumstances warrants consideration of the
modification petition, and if so, then the court will conduct the
imputation analysis. Busche v. Busche, 2012 UT App 16, ¶ 13, 272
P.3d 748. The imputation analysis “involves determining
whether [a party] is voluntarily unemployed or underemployed
and, if so, how much income ought to be imputed.” Id. “A
20150994-CA 8 2017 UT App 120Christensen v. Christensen
person is voluntarily unemployed or underemployed when he
or she intentionally chooses of his or her own free will to become
unemployed or underemployed.” Ouk v. Ouk, 2015 UT App 104,
¶ 7, 348 P.3d 751 (citation and internal quotation marks omitted).
¶22 “If income is imputed to a parent, the income shall be
based upon employment potential and probable earnings
considering, to the extent known: employment opportunities;
work history; occupation qualifications; . . . and prevailing
earnings and job availability for persons of similar backgrounds
in the community.” Utah Code Ann. § 78B-12-203(8)(b)
(LexisNexis 2012). “Imputation cannot be premised upon mere
conjecture; instead, it demands a careful and precise assessment
requiring detailed findings.” Rayner v. Rayner, 2013 UT App 269,
¶ 10, 316 P.3d 455 (citation and internal quotation marks
omitted). Thus, “the trial court must enter not just a finding of
voluntary unemployment . . . but specific, detailed findings as to
the evidentiary basis for the imputation.” Id. (citation and
internal quotation marks omitted). To challenge the trial court’s
findings, Brent must marshal the evidence in support of its
decision and demonstrate that, despite this evidence, “the trial
court’s findings are so lacking in support as to be ‘against the
clear weight of the evidence,’ thus making them ‘clearly
erroneous.’” See Hagan v. Hagan, 810 P.2d 478, 481 (Utah Ct. App.
1991) (quoting In re Estate of Bartell, 776 P.2d 885, 886 (Utah
1989)).
¶23 Here, the trial court began by considering Brent’s claim of
“a material change in income to justify modification.” The court
found that Elena’s income increased from $1,365 to $1,640 per
month (not including her share of Brent’s pension) and that
Brent’s monthly income decreased from $4,749 from his salary as
a school teacher to $3,037.33 from his retirement pension.
However, the court also found that Brent’s monthly expenses
decreased—in particular, that he had “no house payment or
vehicle payment.” Relying on these calculations, the court
concluded that “[w]hile [Brent’s] income has decreased so have
20150994-CA 9 2017 UT App 120Christensen v. Christensen
his expenses.” Thus, the court did not find his change in income
to be a substantial change in circumstances justifying
modification of alimony.
¶24 Brent has not challenged any of these factual findings as
clearly erroneous. Instead, he cursorily argues that his retirement
“resulted in a significant reduction to his personal income.” But
he “has neither marshaled the evidence in support of the trial
court’s decision nor demonstrated that despite this evidence, the
trial court’s findings are so lacking in support as to be against
the clear weight of the evidence.” See id. at 483. Accordingly, he
has not overcome the presumption that the court did not abuse
its discretion in concluding that there was no substantial change
in circumstances warranting modification of alimony. See Busche,
2012 UT App 16, ¶ 7.
¶25 The court also addressed the issue of whether Brent was
voluntarily unemployed. Brent testified to four reasons why he
was not working: that he had “a constitutional right to retire and
remain retired after teaching 32 years in the public school
education profession”; that he “was forced to retire by the
Ogden City School District or [he] would have probably been
fired”; that “many of [his] peers that are [his] same age whose
wives didn’t divorce them are now retiring”; and that he
“want[s] to be a stay-at-home parent for the best benefit of [his]
children.”
¶26 Brent also offered expert testimony from Damon Marsh, a
physician’s assistant. Marsh’s testimony was mixed. On the one
hand, he opined that, based on various conditions, Brent’s
retirement was “medically necessary.” On the other hand, he
testified that Brent might be able to return to work “six months
[to] a year” after vocational rehabilitation, a psychological
assessment, and an orthopedic evaluation. And when asked by
the court whether his testimony that Brent couldn’t go back to
work meant “that [Brent is] not capable of working period,”
Marsh responded, “I’m not saying that, no.”
20150994-CA 10 2017 UT App 120Christensen v. Christensen
¶27 The court considered each of Brent’s arguments about his
employment capacity. The court first noted “there is no
constitutional right to retire.” The court next considered Marsh’s
testimony and noted that “Marsh stated [Brent] is capable of
working.” The court also noted that Brent was “58 years old”
and “retired from teaching after 32 years.” The court then
rejected his argument that being “depressed from the divorce
and forced retirement” rendered him unable to work. The court
also gave little or no weight to his argument that his “wishes to
enjoy retirement and stay at home with the children” justified a
reduction in child support or alimony. Thus, the court found that
he was “physically and mentally able to work and provide for
the family.”
¶28 The court also considered Brent’s earning potential. The
court found that while he “did not elect to stop working as a
teacher, he is capable of employment in other fields.” The court
noted that he “has a college degree and is physically and
mentally able to work” and concluded that the “stress,
depression, and anxiety he feels do not prevent [him] from
working.”
¶29 The court concluded that “[t]he change in circumstances
was created by [Brent]” and that he “should not benefit from a
voluntary decision to stop working.” The court therefore
imputed his “income at $4,700 a month which is consistent with
his historical earnings.”
¶30 On appeal, Brent presents the same evidence showing a
lack of employment capacity as he did in the trial court. He
argues that “there is simply no evidence to support the claim
that [he] is purposefully unemployed simply to reduce his child
support or alimony.” He also argues that the court’s imputation
analysis is based on mere conjecture that he may be capable of
employment after rehabilitation.
20150994-CA 11 2017 UT App 120Christensen v. Christensen
¶31 Again, Brent has failed to marshal the evidence in support
of the court’s findings that he was capable of employment and
that he was voluntarily unemployed, and he has not
demonstrated that these findings are against the clear weight of
the evidence. See Hagan v. Hagan, 810 P.2d 478, 483 (Utah Ct.
App. 1991). “Formal briefing requirements aside, an argument
that does not fully acknowledge the evidence supporting a
finding of fact has little chance, as a matter of logic, of
demonstrating that the finding lacked adequate factual
support.” Bailey v. Retirement Board, 2012 UT App 365, ¶ 8, 294
P.3d 577. Thus, “a party challenging a factual finding . . . will
almost certainly fail to carry its burden of persuasion on appeal
if it fails to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d
645.
¶32 This principle applies here. The evidence before the court,
canvassed above, is sufficient to support the court’s findings.
And because employment capacity “is within the sound
discretion of the trial court,” we defer to the trial court’s finding
that Brent is capable of employment. See Leppert v. Leppert, 2009
UT App 10, ¶ 12, 200 P.3d 223 (“[T]he court is in an advantaged
position to weigh the evidence, determine the persuasive value
of the evidence, and make determinations based on the
evidence.”). Based on the court’s detailed findings analyzing
Brent’s employment capacity and earning potential, we further
conclude that the court did not abuse its discretion in finding
that he was voluntarily unemployed or in imputing income to
him. See Rayner v. Rayner, 2013 UT App 269, ¶ 10, 316 P.3d 455.
III. Alimony
¶33 Brent next contends that “[t]he trial court erred in failing
to retroactively award a reduction in alimony due to [Elena’s]
receiving retirement benefits.” He argues that the trial court
erred by “failing to follow statutory requirements that alimony
modification should be retroactive to the date of the service of
the petition to modify.” In addition, he argues that even if the
20150994-CA 12 2017 UT App 120Christensen v. Christensen
court had discretion to refuse to apply the alimony modification
retroactively, “the court overstepped its discretion” in refusing
to do so here. Specifically, he alleges that “[t]he trial court gave
no explanation as to the reasoning for allowing a 12-month
windfall to [Elena]” during which she received $800 per month
in retirement payments in addition to him owing her $1,200 per
month in alimony.
¶34 The Utah Child Support Act provides that after an
installment of child or spousal support falls due, it is “not subject
to retroactive modification.” Utah Code Ann. § 78B-12-112(3)(c)
(LexisNexis 2012); see also Wall v. Wall, 2007 UT App 61, ¶ 20, 157
P.3d 341 (stating that, as a general rule, child support orders are
not subject to retroactive modification). However, the following
subsection contains an exception allowing the court to
retroactively modify a child or spousal support obligation:
A child or spousal support payment under a
support order may be modified with respect to any
period during which a modification is pending, but
only from the date of service of the pleading on
the obligee, if the obligor is the petitioner, or on the
obligor, if the obligee is the petitioner. If the
tribunal orders that the support should be
modified, the effective date of the modification
shall be the month following service on the parent
whose support is affected. Once the tribunal
determines that a modification is appropriate, the
tribunal shall order a judgment to be entered for
any difference in the original order and the
modified amount for the period from the service of
the pleading until the final order of modification is
entered.
Utah Code Ann. § 78B-12-112(4).
20150994-CA 13 2017 UT App 120Christensen v. Christensen
¶35 Brent relies on the second sentence of this section, which
read in isolation does seem to mandate retroactive modification
of support:
If the tribunal orders that the support should be
modified, the effective date of the modification
shall be the month following service on the parent
whose support is affected.
Id. However, we do not read statutory text in isolation, but in
context. See State v. Robertson, 2017 UT 27, ¶ 32 (“A familiar
canon of statutory construction is that the context of a statute
may eliminate potential interpretations of a statutory phrase.”);
see also Arkansas Game & Fish Comm'n v. United States, 568 U.S. 23,
36 (2012) (stating that “the first rule of . . . statutory
interpretation is: Read on.”). And the preceding sentence grants
courts “the discretion to determine both if and when a
modified . . . support award should be made retroactive.” Wall,
2007 UT App 61, ¶ 21 (citation and internal quotation marks
omitted). It also grants the court discretion to modify alimony
for any period during which the petition for modification is
pending:
A child or spousal support obligation under a
support order may be modified with respect to any
period during which a modification is pending . . . .
Utah Code Ann. § 78B-12-112(4). Accordingly, as we have
previously held, the statute provides “that support may be
modified retroactively with respect to any post-service period,
not that it must be.” Wall, 2007 UT App 61, ¶ 21 (emphases added)
(citation and internal quotation marks omitted). Thus, “[c]ourts
have discretion”—but not a duty—“to modify child support and
alimony awards retroactively.” See Roberts v. Roberts, 2014 UT
App 211, ¶ 25, 335 P.3d 378. In sum, Brent’s contention that Utah
law requires retroactive modification of his alimony obligation,
20150994-CA 14 2017 UT App 120Christensen v. Christensen
though enjoying some textual support, fails on closer inspection
of the controlling statute and opinions of this court construing it.
¶36 We next consider Brent’s contention that, even if the trial
court had discretion to deny retroactive modification, it
exceeded its discretion in doing so. In McPherson v. McPherson,
we stated that trial courts “have considerable discretion in
determining alimony, and harsh awards or a disparity in
obligations can be justified by a finding of one or more
discretionary factors.” 2011 UT App 382, ¶ 20, 265 P.3d 839(citation and internal quotation marks omitted). For example,
“an appropriate finding of voluntary underemployment and a
resulting decision to impute income at a higher level may serve
to motivate a spouse to seek employment more in line with his
true earning capacity[.]” See id. ¶ 21.
¶37 Here, the trial court agreed with Brent’s argument that
“alimony should be reduced by $800” because Elena receives a
payment in that amount each month as a portion of his pension.
The court also agreed that “[i]t would be a windfall for [Elena] to
receive both retirement and alimony,” where the retirement was
not part of the divorce. The court therefore reduced alimony
from $1,200 to $400 per month. The court noted that Elena would
still receive a total of $1,200 per month from Brent including the
$800 retirement payment and the $400 alimony payment.
However, while the court granted Brent’s motion to reduce
alimony for future payments, it ruled that the “modification of
alimony is not retroactive.” The court thus declined to alter the
amount of the $19,043.61 judgment against him for unpaid
alimony and child support. The court found that he “has the
financial means to pay child support and alimony,” noting that
he owned a $200,000 home that was paid off and had a 401(k)
account with over $50,000.
¶38 Given the court’s “considerable discretion in determining
alimony,” its finding that Brent was voluntarily unemployed
and its decision to impute higher income to him constituted
20150994-CA 15 2017 UT App 120Christensen v. Christensen
“discretionary factors” justifying its denial of retroactive
modification. See id. ¶ 20 (citation and internal quotation marks
omitted). We therefore conclude that the trial court did not
abuse its discretion in declining retroactive modification of the
alimony award.
IV. Child Support
¶39 Brent contends that “[t]he trial court erred in calculating
child support.” He argues that “[t]he trial court made several
findings that should have impacted the child support
calculation,” yet “without any explanation ordered that the child
support remain at $548 per month.” He alleges that “[t]he trial
court clearly did not utilize the child support guidelines and
failed to make any findings to support a deviation from the
guidelines.”
¶40 “A parent . . . may at any time petition the court to adjust
the amount of a child support order if there has been a
substantial change in circumstances.” Utah Code Ann. § 78B-12-
210(9)(a) (LexisNexis 2012). “A substantial change in
circumstances sufficient to warrant modification occurs if one of
the parent’s incomes changes ‘30% or more’ or there are
‘material changes in the employment potential and ability of a
parent to earn’ that cause ‘a difference of 15% or more between
the payor’s [original] support amount and the payor’s support
amount that would be required under the guidelines’ using the
new income.” Gore v. Grant, 2015 UT App 113, ¶ 14, 349 P.3d 779(alteration in original) (quoting Utah Code Ann. § 78B-12-
210(9)(b)–(c)). “When such a substantial change of circumstances
occurs, it is presumed that child support will be modified to the
amount set forth in the guidelines.” Id. (citing Utah Code Ann.
§ 78B-12-210(2)). “That presumption is rebutted, however, if
the . . . court determines that ‘complying with a provision of the
guidelines or ordering an award amount resulting from use of
the guidelines would be unjust, inappropriate, or not in the best
interest of a child in a particular case.’” Id. (quoting Utah Code
20150994-CA 16 2017 UT App 120Christensen v. Christensen
Ann. § 78B-12-210(2)(a), (3)). “Should the court determine that
the guidelines amount has been rebutted, the court shall make a
finding to that effect,” id. (citing Utah Code Ann. § 78B-12-
210(3)), and “then must devise a support order” based on
statutory factors, id. (citing Utah Code Ann. § 78B-12-202(3)).
¶41 Here, the trial court ruled that child support would
remain at $548 per month. As explained above, although the
court found that Brent’s income decreased from $4,749.15 to
$3,037.33 per month, the court imputed his monthly income at
$4,700 per month. The court also found that Elena’s income
increased from $1,365 per month at the time of the divorce to
$1,640 per month—not including her share of Brent’s pension—
at the time of the petition to modify. The court determined that
“child support in the sum of $548 is appropriate based on the
income of each parent.”
¶42 Brent argues that, because the trial court found that the
parties’ incomes changed, the court should have used the
statutory child support guidelines to recalculate the amount of
child support. But he has not shown a substantial change in
circumstances in light of his imputed income as required by the
statutory guidelines outlined above. See id. Given that Brent
failed to argue any additional grounds for modification of child
support, the court did not abuse its discretion in denying the
petition to modify child support. See Andrus v. Andrus, 2007 UT
App 291, ¶ 9, 169 P.3d 754.
¶43 We conclude by briefly addressing Brent’s argument at
trial that his payment of the children’s school expenses should
absolve him of the obligation to pay child support. We disagree.
It is well-established that “[b]oth parents have an obligation to
support their children. A child’s right to that support is
paramount.” See Woodward v. Woodward, 709 P.2d 393, 394 (Utah
1985). This principle applies in the context of school expenses. “If
child support is inadequate to cover expenses parents wish to
incur on behalf of their children, such as private school,
20150994-CA 17 2017 UT App 120Christensen v. Christensen
extracurricular activities, or . . . advanced placement tests, there
is nothing to prevent parents from agreeing to share such
additional expenses in the interest of their children.” Davis v.
Davis, 2011 UT App 311, ¶ 15, 263 P.3d 520. “However, these
things are not necessities and must generally be budgeted as part
of child support if the parties cannot agree otherwise.” Id.¶44 Here, Brent and Elena were unable to agree on how to
pay for school expenses, and Brent chose to pay for school
expenses rather than pay child support. However, because “each
child support payment became a judgment on the date it was
due,” he “cannot offset his obligation for the child support
arrearages that were due long before he contributed [money] to
his [children’s] education.” See Vicchrilli v. Tracy, 2011 UT App
354, ¶ 10, 264 P.3d 760. Accordingly, notwithstanding his
payment of school expenses, Brent must meet his child support
obligations, both past and present.
CONCLUSION
¶45 For the foregoing reasons, we conclude that the trial court
did not abuse its discretion in finding that Brent’s change in
income did not justify modification of alimony; that he was
capable of employment; that he was voluntarily unemployed;
and that his employment capacity and earning potential
supported imputation of income. We further conclude that the
trial court did not abuse its discretion in denying retroactive
modification of alimony and in denying modification of child
support. We therefore affirm these rulings. However, because
we conclude that the trial court erroneously considered a legally
irrelevant factor in making its cohabitation determination, we
vacate that ruling and remand to the trial court to determine
whether Elena cohabited under the correct legal standard.
20150994-CA 18 2017 UT App 120