Bond v. Bond , 420 P.3d 53 ( 2018 )

2018 UT App 38THE UTAH COURT OF APPEALS
LISA EMILY BOND,
Appellant,
v.
MARK EDWARD BOND,
Appellee.
Opinion
No. 20160598-CA
Filed March 15, 2018
Second District Court, Farmington Department
The Honorable Glen R. Dawson
No. 144701018
David O. Black, Attorney for Appellant
Cory R. Wall, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES
KATE A. TOOMEY and JILL M. POHLMAN concurred.
HARRIS, Judge:
¶1 After a four-day divorce trial, the court ordered Mark
Bond (Mark) to pay $2,350 per month in alimony to Lisa Bond
(Lisa). 1 As part of its alimony calculation, the trial court imputed
to Lisa a monthly income of $600. Lisa appeals, asserting that the
trial court erred by imputing any income to her at all, and
contending that the alimony award therefore should have been
larger. Because the trial court’s findings regarding imputation of
income were supported by competent evidence, we affirm.
1. Consistent with our practice in cases where both parties share
a surname, in this opinion we refer to the parties by their first
names, with no disrespect intended by the apparent informality.
See, e.g., Smith v. Smith, 2017 UT App 40, ¶ 2 n.1, 392 P.3d 985.
Bond v. Bond
BACKGROUND
¶2 Lisa and Mark married in 1989. In 1995, Lisa was
diagnosed with multiple sclerosis (MS). Despite this diagnosis,
Lisa continued to work—sometimes part-time, sometimes full-
time—as a travel agent until approximately 2012. At that time,
Mark and Lisa made a mutual decision that Lisa should quit her
job. At trial, Mark testified that, around that time, Lisa was
experiencing stress at work, and that this stress was related to
both office-specific conflicts as well as the general difficulties
inherent in working while afflicted with MS. During her
testimony, Lisa clarified that, around that time, she had made
some errors at work, that these errors caused her stress, and that
the stress made her MS symptoms worse. Mark and Lisa were
also aware that Lisa would likely qualify for Social Security
disability benefits. For all of these reasons, Mark and Lisa agreed
that Lisa should stop working and instead apply for Social
Security benefits. For the remainder of their marriage, Lisa did
not work outside the home.
¶3 Lisa petitioned for divorce in July 2014, and the case went
to trial in early 2016. The main issue at trial was whether, and to
what extent, Lisa should be awarded alimony. The parties
disagreed about many of the specific factors relevant to the
alimony analysis, including whether Lisa was physically able to
be gainfully employed and, accordingly, whether any income
should be imputed to her. For her part, Lisa testified that, due to
her MS diagnosis, she was physically unable to engage in gainful
employment at all. Lisa also presented testimony from her
treating provider (Nurse Practitioner), a nurse practitioner who
worked in the MS clinic at the University of Utah and who had
been treating Lisa for her MS since 2003. Nurse Practitioner
testified that patients with MS often struggle to maintain
employment, and that MS can make it so that they “just cannot
function” in the workplace. Nurse Practitioner offered her
opinion that Lisa was in this category, and was physically
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unable to return to the workforce in any capacity due to her MS. 2
However, Nurse Practitioner conceded on cross-examination
that Lisa was capable of operating a computer and a telephone,
capable of driving a car and traveling, and was generally able to
complete basic activities of daily living.
¶4 During his case-in-chief, Mark presented the testimony of
a vocational rehabilitation counselor (Expert) to testify about
Lisa’s ability to work. Expert testified that she had significant
experience evaluating individuals with disabilities generally,
and evaluating individuals with MS specifically. Expert offered
her opinion that, despite Lisa’s disabilities, Lisa would be able to
work on a part-time basis in a “sedentary occupation” so long as
her employer made “reasonable accommodations.” Expert
offered three specific examples of jobs that she believed Lisa
could perform—a reception information clerk, a hotel desk clerk,
or a reservation and ticket agent—and testified that wages in
these types of jobs ranged from $9.61 to $12.87 per hour. On
cross-examination, Expert conceded that Lisa would have
difficulty working a normal eight-hour work shift, and that her
recommendation was that Lisa work only “part-time.” Expert
did not further define “part-time,” but conceded that Lisa would
“perhaps” need to limit herself to working “three to four hours a
day.” Further, in describing the sort of “reasonable
2. Nurse Practitioner attempted to elaborate on her testimony
about Lisa’s employability, but the trial court refused to allow
additional testimony on that topic from Nurse Practitioner
because Nurse Practitioner was not a vocational expert.
However, Nurse Practitioner’s overall opinion that Lisa could
not work due to her physical limitations was never stricken from
the record, and Mark’s counsel inquired into that opinion at
length on cross-examination. Lisa does not appeal the trial
court’s restrictions on Nurse Practitioner’s additional testimony
regarding employability.
20160598-CA 3 2018 UT App 38Bond v. Bond
accommodations” that Lisa would need her employer to make,
Expert noted that Lisa would need “an employer that
understands [her] disability and is willing to break down tasks
in smaller pieces and give [her] longer breaks.” Although neither
Expert nor any other witness was able to identify any current job
openings with specific employers that would satisfy these
criteria, Expert testified generally that “there are many
employers that are willing to do that and understand the nature
of disability and are willing to help . . . manage those tasks for
individuals.”
¶5 After trial, the court found that Lisa was capable of at
least part-time employment, and imputed $600 per month in
income to her. This calculation was based on a finding that Lisa
was capable of working at least three hours per day, for a total of
fifteen hours per week, at an hourly wage of $9.61, for fifty
weeks per year.
ISSUE AND STANDARD OF REVIEW
¶6 On appeal, Lisa challenges the trial court’s decision to
impute income to her, and argues that the evidence introduced
at trial did not support the trial court’s finding that she was
capable of working for three hours per day at an hourly wage of
$9.61. “A challenge to the sufficiency of the evidence concerns
the trial court’s findings of fact. Those findings will not be
disturbed unless they are clearly erroneous.” Kimball v. Kimball,
2009 UT App 233, ¶ 14, 217 P.3d 733 (citation and internal
quotation marks omitted); see also Utah R. Civ. P. 52(a)(4)
(“Findings of fact, whether based on oral or other evidence, must
not be set aside unless clearly erroneous, and the reviewing
court must give due regard to the trial court’s opportunity to
judge the credibility of the witnesses.”). Courts have “broad
discretion to select an appropriate method of assessing a
spouse’s income,” including determinations of income
imputation. See Connell v. Connell, 2010 UT App 139, ¶ 17, 233
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P.3d 836 (citation and internal quotation marks omitted). “[T]he
existence of conflicting evidence is not sufficient to set aside a
trial court’s finding.” State v. Menzies, 845 P.2d 220, 226 (Utah
1992). Instead, “[a] finding is clearly erroneous only if it is in
conflict with the clear weight of the evidence.” Kidd v. Kidd, 2014
UT App 26, ¶ 19, 321 P.3d 200 (citation and internal quotation
marks omitted).
ANALYSIS
¶7 In divorce proceedings, a trial court may impute income
to a spouse if it determines that the spouse is underemployed.
Fish v. Fish, 2010 UT App 292, ¶ 14, 242 P.3d 787. Under Utah
law, when income is imputed to an underemployed spouse, “the
income shall be based upon employment potential and probable
earnings.” Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis Supp.
2017). 3 In evaluating a spouse’s “employment potential and
probable earnings,” courts are instructed to consider, among
other factors, available employment opportunities, the spouse’s
health and relevant work history, and “prevailing earnings and
job availability for persons of similar backgrounds in the
community.” Id. § 78B-12-203(8)(b)(i)–(x). Trial courts enjoy
“broad discretion” in applying these factors and in making
factual findings regarding imputation of income. See Connell,
2010 UT App 139, ¶ 17 (citation and internal quotation marks
omitted); see also Oldroyd v. Oldroyd, 2017 UT App 45, ¶ 5, 397
P.3d 645 (observing that trial courts have “considerable
discretion in determining the financial interests of divorcing
parties”).
3. “Although this section of the Utah Code addresses imputation
for the purposes of child support, it is also relevant to
imputation in the alimony context.” Fish v. Fish, 2010 UT App
292, ¶ 14 n.5, 242 P.3d 787.
20160598-CA 5 2018 UT App 38Bond v. Bond
¶8 Here, Expert offered her opinion that Lisa is able to work,
at least part-time, in a “sedentary occupation,” at least as long as
her employer is willing to make reasonable accommodations.
Expert considered Lisa’s MS diagnosis in forming her opinion.
Expert also identified three examples of the type of “sedentary
occupation” that she thought Lisa could perform, and testified
that such jobs pay wages ranging from $9.61 to $12.87 per hour.
Based largely on Expert’s testimony, the trial court found that
Lisa was capable of working for three hours per day, for a total
of fifteen hours per week, at $9.61 per hour, for fifty weeks per
year, and imputed $600 per month in income to Lisa based on
those findings.
¶9 Although both Lisa and Nurse Practitioner testified that
Lisa was incapable of working at all, the trial court was not
required to credit that evidence. See Kimball v. Kimball, 2009 UT
App 233, ¶ 20 n.5, 217 P.3d 733 (stating that, “[n]o matter what
contrary facts might have been found from all the evidence, our
deference to the trial court’s pre-eminent role as fact-finder
requires us to take the findings of fact as our starting point,
unless particular findings have been shown . . . to lack legally
adequate evidentiary support”). And on appeal, we do not
second-guess a trial court’s evaluation of witnesses’ relative
credibility or of the weight to be given to their testimony. See
Barrani v. Barrani, 2014 UT App 204, ¶ 24, 334 P.3d 994 (stating
that “an appellate court’s role is not to reweigh the evidence
presented at trial but only to determine whether the court’s
decision is supported by the evidence, leaving questions of
credibility and weight to the trial court”).
¶10 In a situation like this one, the trial court could reasonably
have credited either side’s testimony. It could conceivably have
found that Lisa was physically incapable of gainful employment
and, had it done so, we would have been in no position to take
issue with that finding. In this instance, however, the trial court
chose to generally credit Expert’s testimony regarding Lisa’s
20160598-CA 6 2018 UT App 38Bond v. Bond
employability over Lisa’s and Nurse Practitioner’s testimony—
something it was entitled to do. The trial court based its findings
on Expert’s testimony, and those findings were well within the
ranges laid out by Expert. Indeed, the trial court selected the
lowest of the three hourly wages that Expert presented ($9.61), 4
and selected a per-day hours figure (three) that was toward the
low end of the range that Expert presented. Because the trial
court’s factual findings are clearly supported by Expert’s
testimony, we cannot conclude that they lack general evidentiary
support. See Kimball, 2009 UT App 233, ¶ 14.
¶11 Lisa contends, however, that the trial court’s findings are
nevertheless unsupported by competent evidence, and she
makes two specific arguments in support of this contention.
First, Lisa argues that the trial court’s findings lack support
because neither Expert nor any other witness identified a specific
job with a specific employer that met Expert’s criteria. This
argument misperceives the specificity requirements that
vocational testimony must meet. Courts may impute income
“based upon employment potential and probable earnings.” Utah
Code Ann. § 78B-12-203(8)(b) (emphasis added). Neither the
statute nor any case law of which we are aware requires trial
witnesses to identify a position with a specific employer that
meets a spouse’s employment needs. A trial court may ground
4. Lisa argues that there is insufficient evidence that any
employer would pay part-time employees, as opposed to full-
time employees, the wages Expert identified. We are
unpersuaded. Expert’s opinion was that jobs exist in the
marketplace on that particular wage scale for part-time
employees with minor disabilities. Lisa presented no
independent evidence to the contrary, and did not even cross-
examine Expert on the wage scale issue. Expert’s testimony
regarding wages was sufficient evidence to support the trial
court’s finding that Lisa could earn $9.61 per hour.
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its imputation findings on more general evidence, including
testimony that jobs exist in the relevant marketplace that could
theoretically meet a spouse’s employment qualifications and
medical needs. See Busche v. Busche, 2012 UT App 16, ¶ 21, 272
P.3d 748 (observing that imputation decisions “necessarily
depend[] on whether there are jobs available in the relevant
market for a person with the party’s qualifications and
experience”); cf. Fish, 2010 UT App 292, ¶¶ 5, 16–17 (upholding
an imputation decision where a vocational specialist testified
there “were a significant number of local jobs available” for
which the spouse was qualified). Here, Expert identified several
categories of employment that would theoretically meet Lisa’s
medical and physical needs.
¶12 Second, Lisa argues that no witness offered any testimony
that jobs exist in the current marketplace that meet Lisa’s specific
need for reasonable accommodations, such as shorter shifts and
frequent breaks. On this point, Lisa is simply incorrect; Expert
testified that “there are many employers that are willing to
[accommodate employees’ disabilities] and understand the
nature of disability and are willing to help . . . manage those
tasks for individuals.” Expert’s testimony in this regard is not
rendered incompetent simply because Expert did not identify
any specific employer willing to hire part-time employees on
those terms.
CONCLUSION
¶13 The trial court’s findings regarding imputation of income
to Lisa were supported by competent evidence, and were
therefore not clearly erroneous. We have no basis to disturb
them.
¶14 Affirmed.
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