Myers v. Myers

2023 UT App 20THE UTAH COURT OF APPEALS
AMY R. MYERS,
Appellee,
v.
JACOB W. MYERS,
Appellant.
Opinion
No. 20220002-CA
Filed March 2, 2023
Sixth District Court, Richfield Department
The Honorable Brody L. Keisel
No. 184600056
Benjamin L. Wilson, Attorney for Appellant
Douglas L. Neeley, Attorney for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY
concurred.
HARRIS, Judge:
¶1 After more than two decades of marriage, Jacob and Amy
Myers divorced in 2018, and mutually agreed to the terms of their
divorce. In particular, they agreed that Jacob 1 would pay Amy
$916 per month in child support and $2,300 per month in alimony.
Less than two years later, Jacob filed a petition to modify the
divorce decree, asserting that both his and Amy’s income had
changed since the divorce. The district court, after holding a trial,
denied Jacob’s petition to modify, and Jacob appeals that denial,
1. Because the parties have the same last name, we refer to them
by their first names for clarity, with no disrespect intended by the
apparent informality.
Myers v. Myers
asserting that the court erred in determining that Amy’s ability to
earn had not changed and in failing to make findings regarding
Amy’s reasonable expenses. We find merit in Jacob’s positions,
and therefore reverse and remand.
BACKGROUND
¶2 Jacob and Amy Myers married in 1995, but divorced in
2018 after some twenty-three years of marriage. When they
divorced, one of their children (born in 2001) was still a minor, but
all their children are now adults. Throughout most of their
marriage, Jacob worked in oil production as a rig manager. His
position paid relatively well—at the time of the divorce, he was
earning $8,233 per month—but required him to work a
nontraditional schedule (two weeks on, two weeks off), and in
addition the job was sometimes dangerous and often involved the
operation of heavy machinery.
¶3 While Jacob worked in the oil fields, the couple decided
that Amy would—at least until the children were grown—forgo
steady employment outside the home in order to care for the
children. Amy did, however, run a small “foot zoning” business
from which she earned approximately $250 per month.
¶4 In April 2018, Amy filed for divorce, citing irreconcilable
differences. Jacob did not contest Amy’s petition; instead, the
parties—neither of which were, at the time, represented by
counsel—filed a joint stipulation, using forms provided by the
court’s self-help center, agreeing to resolve all matters related to
the divorce petition. As amended, the stipulation provided that
Jacob would pay Amy $916 per month in child support—at least
for another year or two until the parties’ youngest child reached
the age of majority—and $2,300 per month in alimony. Jacob’s
obligation to pay alimony was to last twenty-three years—until
April 2041—unless Amy remarried or cohabited before that.
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¶5 In the stipulation, the parties agreed that Jacob’s income
was $8,233 per month, and that Amy’s income was $250 per
month, and those figures were apparently used to calculate
Jacob’s child support obligation according to applicable
guidelines. But the stipulation contained no indication of how
Jacob’s alimony obligation was calculated; in particular, the
stipulation was silent as to what Amy’s reasonable monthly
expenses might be.
¶6 Using court-approved forms, the parties incorporated the
terms of their stipulation into proposed findings of fact and
conclusions of law, as well as a proposed divorce decree, and the
district court signed the documents, thus finalizing the parties’
divorce, in May 2018. The final documents, like the parties’
amended stipulation, provided that Jacob would pay $916 per
month in child support and $2,300 per month in alimony, but
contained no findings about Amy’s reasonable monthly expenses.
¶7 About eighteen months later, in November 2019, Jacob—
now represented by an attorney—filed a petition to modify the
alimony award contained in the decree. In the petition, Jacob
alleged that “the income of both parties has significantly changed
since their divorce was finalized.” With regard to his own income,
Jacob alleged that he was “no longer working in the oil fields”
because he was “no longer able to work the same work schedule
and the same type of work because of how it was negatively
affecting him.” He asserted that he was “going back to school” in
an effort to begin a different career, and that he was “currently not
working.” With regard to Amy’s income, Jacob alleged that Amy
had become employed and earned $1,200 per month, and that her
“self-employment income” had increased to $1,500 per month,
such that Amy’s total monthly income was $2,700. Jacob alleged
that the changes in the parties’ respective incomes constituted a
“substantial change in circumstances that warrants a
modification” of the alimony award.
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¶8 Just a few weeks later, in January 2020, Amy—also now
represented by an attorney—filed a motion for an order to show
cause, asserting (among other things) that Jacob had failed to fully
comply with his child support and alimony obligations. The court
issued an order commanding Jacob to appear and show cause
why he should not be held in contempt of court, and later held an
evidentiary hearing to consider the matter. At that hearing, the
court found that Jacob had “voluntarily quit his employment” in
the oil fields and that, “if he hadn’t, he would have been able to
pay what was ordered.” The court thus found Jacob in contempt
and ordered him to pay Amy more than $22,000 in back child
support and nearly $6,000 in unpaid alimony.
¶9 In the meantime, Jacob’s petition to modify remained
pending, and the parties exchanged updated financial
declarations in anticipation of an eventual trial. Amy’s first
updated financial declaration, signed in December 2019, listed
total annual income of nearly $11,000 (or about $889 per month)
from three different sources: a new job, her foot zoning business,
and teaching yoga classes. In this same declaration, Amy set forth
monthly expenses of $4,084, with some of the expenses being at
least partially attributable to her youngest child, who was still
living in the home with Amy at that point. Then in August 2021,
on the day of trial, Amy submitted a second updated financial
declaration. According to this new declaration, Amy had recently
obtained a different job, this one full-time, that paid her $45,000
per year ($3,750 per month). In addition, Amy stated that she
earned $241 per month from her foot zoning business and $22 per
week teaching yoga. She also asserted that her monthly expenses
had increased to $4,795 (although the line-items listed in the
declaration add to only $4,613), even though no children were
living with her any longer. Among the changes from the 2019
declaration were a $500 increase in healthcare expenses, a $175
increase in real estate maintenance, a $100 increase in
entertainment expenses, and an $88 increase in utilities.
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¶10 In August 2021, the district court held a one-day bench trial
to consider Jacob’s petition to modify. The only two witnesses to
testify were Jacob and Amy. During his testimony, Jacob
explained that he voluntarily left his position in the oil fields
because he was no longer able to focus on his job duties to the
degree he wanted, and he was worried that—due to the
dangerous nature of the work—he would injure himself or
someone else. However, he acknowledged, on cross-examination,
that he was still physically able to perform the duties of the job;
that his employer had not asked him to leave; that he had not
received mental health counseling to address his concerns about
the stress of his work; that he could have taken a leave of absence
to address those issues and “gone back to” his job after that; and
that if he had done so, he would still “be able to . . . pay the $2,300
a month in alimony.” He testified that, as of the time of trial, he
was working at a home improvement warehouse earning $14 per
hour, or $2,426 each month.
¶11 During her testimony, Amy testified that she had recently
obtained full-time employment with the local chamber of
commerce, in which she earned a salary of $3,750 per month. In
response to direct questioning about this job, Amy conceded that
she has “the ability to earn at least $3,750 a month,” and that she
would be able to “do that moving forward.” In addition, she
acknowledged that she earned additional income from her foot
zoning business and her work as a yoga instructor. Amy testified
that she earned some $100 per month from teaching yoga. With
regard to her foot zoning business, she testified that she averaged
ten treatments per month and charges $50 per treatment, and
therefore earns $500 per month in revenue. But she testified that
she must pay certain expenses associated with the business that
eat up most of the revenue, resulting in her making only some $90
per year (or $7.50 per month) in profit. On cross-examination, she
acknowledged that her total gross income from all sources, before
expenses, was approximately $4,350 per month.
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¶12 Amy testified that she was still living in the same house
that the couple had been living in during the marriage, but that
now—at the time of trial—she was living there alone because her
children were grown and gone. With regard to expenses, she
testified that her total monthly expenses were $4,084 in 2019 but
had increased to $4,795 at the time of trial, despite the fact that, by
the time of trial, she was living alone. She explained that new
health insurance and home maintenance costs were largely
responsible for the increase. But then, in response to a direct
question about how her expenses at the time of the 2018 divorce
compared to her expenses at the time of the 2021 modification
trial, she testified that her expenses had “stayed the same.”
¶13 After trial, the parties (through counsel) submitted written
closing arguments. Amy argued that, for purposes of the alimony
computation, the court should impute to Jacob the same income
he had made in the oil fields, find there to be no material and
substantial change in circumstances, and on that basis dismiss the
petition to modify. For his part, Jacob argued that the court should
modify (or even terminate) his alimony obligation because Amy
was now employed full-time and had the ability to provide for
her own needs. In particular, Jacob argued that Amy’s reasonable
expenses were in actuality less than the amounts reflected on her
recent financial declaration and in her testimony, and that her
increased income was sufficient to meet those needs.
¶14 A few weeks later, the district court issued a written ruling
denying Jacob’s petition to modify. In its ruling, the court found
that Jacob had voluntarily quit his job in the oil fields, and that his
monthly income had decreased from $8,233 to $2,427. The court
also found that Amy “currently works” for the local chamber of
commerce “earning $45,000 annually,” and that Amy “also has
side businesses doing foot treatments and teaching yoga.” But the
court made no specific finding regarding Amy’s total income.
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¶15 Building on these findings, the court concluded that Jacob’s
change in income constituted “a substantial material change in
circumstances that was not expressly stated in the decree.” The
court did not separately analyze whether the change in Amy’s
income also constituted such a change in circumstances.
¶16 Having concluded that there existed a substantial material
change in circumstances, the court proceeded to “consider
whether modification [of the alimony award] is appropriate.” The
court began its analysis by examining Jacob’s income situation,
and concluded that, because Jacob had left his job voluntarily and
had not sustained any loss in earning capacity, Jacob “remains
able to earn income at the level he was earning at the oil fields.”
Accordingly, the court imputed to Jacob an income of $8,233 per
month for purposes of the alimony calculation.
¶17 With regard to Amy’s expenses, the court found that her
“financial needs . . . [have] not changed since” 2018, when “the
stipulated decree was entered,” but made no specific finding as to
the exact amount of those expenses.
¶18 And with respect to Amy’s earning capacity, the court
offered its view that the “determinative factor[]” was not Amy’s
income but, instead, her “ability to provide” for herself. On that
score, the court found that “[n]o evidence was presented that
[Amy] has obtained extra education or has otherwise increased
her ability to earn since the time of the divorce,” and therefore
concluded that—despite her increased income—her earning
capacity had not changed. In so ruling, the court observed that it
was Jacob’s “unilateral decision” to leave his job that compelled
Amy to “obtain employment to provide for herself,” and stated
that reducing Jacob’s alimony obligation where the precipitating
event “was [Jacob’s] decision to leave his employment would set
a precedent allowing parties who have stipulated to pay alimony
to renege on that stipulation by taking a much lower paying job
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and forcing receiving parties to find additional employment by
stopping alimony payments.” 2
ISSUE AND STANDARDS OF REVIEW
¶19 Jacob now appeals the court’s denial of his petition to
modify. In this context, “we review the district court’s underlying
findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT
App 207, ¶ 11, 456 P.3d 1159, and we review its determination
regarding the presence or absence of a substantial change of
circumstances, as well as its ultimate determination regarding the
petition to modify, for an abuse of discretion, see id.; see also
Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The
district court’s choice of, and application of, the appropriate legal
standard, however, “presents an issue of law that we review for
correctness.” Peeples, 2019 UT App 207, ¶ 11.
2. Amy does not argue that we should affirm the denial of Jacob’s
petition to modify on the basis that the original award was
derived from a stipulation, and therefore the district court’s
comments about holding Jacob to his stipulation are not directly
before this court. But we note, for clarity, that even stipulated
alimony awards are subject to modification. See, e.g., Diener v.
Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a
court “is certainly empowered to consider the circumstances
surrounding an existing stipulation when considering a petition
to modify . . . , the law was intended to give the courts power to
disregard the stipulations or agreements of the parties . . . and
enter judgment for such alimony . . . as appears reasonable, and
to thereafter modify such judgments when change of
circumstances justifies it, regardless of attempts of the parties to
control the matter by contract” (quotation simplified)); accord Sill
v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415.
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ANALYSIS
¶20 We begin our analysis with a general discussion of
petitions to modify alimony awards and the process courts are to
follow when adjudicating such petitions. We then address Jacob’s
claim that the court failed to follow the correct process in this case.
I
¶21 After a district court has made an award of alimony, the
court “retains continuing jurisdiction to” modify that award
“when it finds that there has been a substantial material change in
circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7,
405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-
5(8)(i)(i) (2019). 3 If the court determines that no substantial
3. At the time Jacob filed his petition to modify, the relevant
statute authorized modification of alimony awards when the
movant could demonstrate that there had been “a substantial
material change in circumstances not foreseeable at the time of the
divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In
2021, prior to the trial on Jacob’s petition to modify, our legislature
amended that statutory provision; under current law,
modification is authorized upon a showing that there has been “a
substantial material change in circumstances not expressly stated in
the divorce decree or in the findings that the court entered at the time of
the divorce decree.” Id. § 30-3-5(11)(a) (2022) (emphasis added). In
this appeal, the parties have not briefed the question of which
version of the statute applies to Jacob’s petition to modify, nor has
either side suggested that the outcome of this case turns on these
differences in statutory text. Operating on the assumption that
Jacob is entitled to application of the version of the statute in effect
when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251
P.3d 829 (stating that “we apply the law as it exists at the time of
the event regulated by the law in question,” and that when that
(continued…)
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material change in circumstances has occurred, then the court’s
analysis ends, and the petition to modify the alimony award is
properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d
431 (“As a threshold issue, before modifying an alimony award,
the court must find a substantial material change in circumstances
. . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT
App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of
a petition to modify on the ground that there existed no
substantial material change in circumstances).
¶22 If, however, the court finds that a substantial material
change in circumstances has occurred, the court must conduct a
complete analysis regarding whether the alimony award remains
appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that,
once a finding of changed circumstances “has been made, the
court must then consider” the alimony factors (emphasis added)
(quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This
analysis should include examination of the statutory alimony
factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors
commonly referred to as “the Jones factors,” see Jones v. Jones, 700
P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155,
¶ 7 (stating that, after finding that circumstances have changed,
“the court must then consider at least the following factors in
determining a new alimony award: (i) the financial condition and
needs of the recipient spouse; (ii) the recipient’s earning capacity
or ability to produce income; (iii) the ability of the payor spouse
to provide support; and (iv) the length of the marriage” (quotation
simplified)). “These factors apply not only to an initial award of
alimony, but also to a redetermination of alimony during a
event is a motion, “we apply the law as it exists at the time the
motion is filed”), we apply the 2019 version of the statute in this
appeal, but follow the parties’ lead in presuming this application
to have no effect on the outcome of the case.
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modification proceeding.” Williamson v. Williamson, 1999 UT App
219, ¶ 8, 983 P.2d 1103.
¶23 “Consideration of these factors is critical to achieving the
purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14,
414 P.3d 1023, which are “(1) to get the parties as close as possible
to the same standard of living that existed during the marriage;
(2) to equalize the standards of living of each party; and (3) to
prevent the recipient spouse from becoming a public charge,”
Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation
simplified). “The core function of alimony is therefore economic—
it should not operate as a penalty against the payor nor a reward
to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335
P.3d 378.
¶24 “Regardless of the payor spouse’s ability to pay more, the
recipient spouse’s demonstrated need must constitute the
maximum permissible alimony award.” Id. (quotation
simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334
P.3d 994 (“An alimony award in excess of the recipient’s need is a
basis for remand . . . .”). Because a recipient spouse’s
demonstrated need constitutes an effective “ceiling” on an
alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481,
courts often begin their analysis by assessing whether recipient
spouses are able to meet their reasonable needs through their own
income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402
P.3d 219 (stating that, in determining alimony, courts will
generally “first assess the needs of the parties, in light of their
marital standard of living” (quotation simplified)). If the recipient
spouse is able to meet his or her own needs, then the analysis
ends, and no award should be made, but if “the recipient spouse
is not able to meet [his or] her own needs, then [the court] should
assess whether the payor spouse’s income, after meeting his [or
her] needs, is sufficient to make up some or all of the shortfall
between the recipient spouse’s needs and income.” See id.(quotation simplified).
20220002-CA 11 2023 UT App 20Myers v. Myers
¶25 When considering the relevant alimony factors, courts are
“required to make adequate factual findings on all material issues,
unless the facts in the record are clear, uncontroverted, and
capable of supporting only a finding in favor of the judgment.”
Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 9, 80 P.3d 153(quotation simplified). When a district court fails to enter specific
findings regarding “the needs and condition of the recipient
spouse, making effective review of the alimony award impossible,
that omission is an abuse of discretion.” Id. ¶ 10.
II
¶26 With these principles in mind, we turn our attention to
Jacob’s assertion that the court failed to follow the correct process
in adjudicating his petition to modify. In particular, Jacob asserts
that the court—once it determined that there had been a
substantial material change in circumstances—was required to
conduct a complete analysis of all the alimony factors, and that it
failed to properly do so. 4 We find merit in Jacob’s argument.
4. Amy characterizes Jacob’s appellate claims as assertions that
the district court’s findings were inadequate, and argues based on
this characterization that Jacob—by not asking the court to make
more detailed findings—failed to preserve his claims for appellate
review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a
party “waives any argument regarding whether the district
court’s findings of fact were sufficiently detailed when the [party]
fails to challenge the detail, or adequacy, of the findings with the
district court” (quotation simplified)). While we acknowledge—
as discussed herein—that the court did not make findings on
several of the alimony factors, that was due to the court’s error
(discussed herein) regarding Amy’s earning capacity, and its
concomitant failure to complete the proper legal analysis. Thus,
we disagree with Amy’s characterization of Jacob’s claims on
(continued…)
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¶27 The district court started its analysis in the proper place,
and assessed whether Jacob had demonstrated that there had
been a substantial material change in circumstances that would
justify reopening the alimony inquiry. Looking just at the change
in Jacob’s own income, the court made a finding that there had
been a “substantial change in circumstances.” And neither party
takes issue with this finding on appeal; both appear to
acknowledge the correctness of the court’s initial determination
that circumstances affecting these parties had changed enough to
justify a second look at the alimony situation. 5
¶28 From there, though, the court’s analysis strayed from the
proper path. After determining that the change in Jacob’s income
constituted a substantial material change in circumstances, the
court did not conduct a full analysis of the relevant alimony
factors. With regard to Amy’s needs, the court’s analysis, in full,
was simply this: “[Amy] testified that her monthly expenses have
not increased from the time the parties were divorced in May 2018
until the time of trial in August of 2021.” The court made no
appeal, and note that Jacob certainly preserved for our review the
general question of whether the district court applied the correct
legal analysis to his petition to modify, as well as the more specific
question of whether Amy can meet her needs through her own
income. Thus, we reject Amy’s assertion that Jacob’s contentions
on appeal were not properly preserved for our review.
5. We note that the court made this determination by looking
solely at the change in Jacob’s income. Arguably, the change in
Amy’s income would constitute a second basis for a
determination that circumstances had changed significantly
enough to revisit the appropriateness of the alimony award.
Ultimately, however, it does not matter, for purposes of this
appeal, which change the district court relied on to determine that
a substantial material change had taken place.
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finding that Amy’s testimony on that point was credible, see Rehn
v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not
merely restate the recipient spouse’s testimony regarding her
monthly expenses.” (quotation simplified)), and did not make any
effort to assess what Amy’s reasonable monthly needs actually
were; the court’s comparison to the 2018 divorce decree is
especially unhelpful, in context, because that decree contained no
specific determination regarding Amy’s expenses.
¶29 With regard to the parties’ earning capacity, the court
acknowledged that Amy had obtained a full-time job that paid her
$3,750 each month, and that Amy “earns additional income from
a foot zoning business and teaching yoga.” But the court made no
finding as to what Amy’s total income actually was, stating that
“[n]o evidence was presented that [Amy] has obtained extra
education or has otherwise increased her ability to earn since the
time of the divorce, only that her actual income has increased.”
¶30 And with regard to Jacob, the court found that he had
voluntarily left his job in the oil fields, and that he “remains able
to earn income at the level he was earning” before. On that basis,
the court imputed to Jacob income of $8,233 per month, despite
the fact that Jacob was no longer earning that amount. Jacob takes
no issue with this imputation determination on appeal.
¶31 The court then completed its analysis by stating as follows:
“[Amy’s] financial needs and both parties’ ability to earn has not
changed since the time the stipulated decree was entered.
Therefore, [Jacob’s] Petition to Modify the alimony ordered in the
decree is DENIED.”
¶32 In our view, the court was, at least to some extent,
conflating the “changed circumstances” part of the analysis with
the “Jones factors” part of the analysis. Its first mistake was failing
to make a specific finding regarding Amy’s reasonable monthly
needs. As noted, no such finding had been made in connection
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with the 2018 decree, and Amy had submitted two conflicting
financial declarations since then. In order to complete the multi-
factor alimony analysis mandated by the court’s unchallenged
conclusion that circumstances had materially changed, the court
needed to make an actual finding regarding Amy’s expenses. 6
¶33 The next error the court made was in determining that
Amy’s earning capacity had not changed, even though her income
had. And here, it is important to differentiate between situations
in which a spouse’s income goes down from situations in which a
spouse’s income goes up. Certainly, where a spouse’s income goes
down, it does not necessarily follow—indeed, it often does not
follow—that the spouse’s earning capacity has also gone down; in
such situations, courts retain the discretion to determine that,
even though a spouse’s income has gone down, his or her earning
capacity has not been diminished, and to impute to the spouse—
for instance, on the basis of a finding of voluntary
underemployment—an income in line with the unchanged
earning capacity. See, e.g., Olson v. Olson, 704 P.2d 564, 566 (Utah
1985) (stating that where parties “experience[] a temporary
decrease in income, [their] historical earnings must be taken into
account in determining the amount of alimony to be paid”);
6. Amy argues that the “facts concerning [her] financial needs and
conditions are clear from the record,” and on that basis urges us
to excuse the court’s failure to make a specific finding. We
disagree with the premise of Amy’s argument. At trial, Amy
testified that her expenses had stayed the same since May 2018,
but there was no 2018 figure to which Amy’s testimony could be
compared. Moreover, after 2018, Amy submitted two conflicting
financial declarations and, at trial, Jacob’s attorney established
that Amy was then living alone rather than with one or more of
the parties’ children. We therefore agree with Jacob that the
evidence in the record regarding Amy’s expenses was sufficiently
conflicting as to be significantly less than “clear.”
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Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612(noting that “a finding of voluntary underemployment is not a
prerequisite to imputing income,” and affirming a trial court’s
determination to assess the payor spouse’s income at a higher
level than his current income because the current lower income
was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT
App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism
about a payor spouse’s sudden drop in income where the spouse
“came into trial making a huge amount of money . . . and then all
of a sudden is making no money because, you know, now it’s time
to pay somebody” (quotation simplified)). Indeed, the district
court made precisely such a finding with regard to Jacob, and no
party takes issue with that finding here on appeal.
¶34 But the fact that a spouse’s income has gone up is very
strong evidence that the spouse’s earning capacity has also risen.
A party who is actually earning $45,000 per year will nearly
always properly be deemed to have the capacity to earn at least
that amount. There are, of course, exceptions: in some isolated
instances, an increase in income is temporary and does not reflect
an overall or long-term increase in earning capacity. See English v.
English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties
“experience[] unusual prosperity during one year,” that unusual
income figure is not necessarily indicative of earning capacity); see
also, e.g., Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247(holding that a spouse’s earning capacity, moving forward, was
not reflected by three “retroactive salary bonuses” that were not
likely to occur in the future, and stating that, since the spouse’s
“elevated salary during [the] period [in which he received those
bonuses] is totally disproportionate to his actual earning capacity,
his support obligation should reflect his earning capacity rather
than his actual earnings”). But before concluding that a spouse’s
earning capacity is less than the spouse’s actual income, a court
should have evidence that the spouse’s higher income is truly
ephemeral and not indicative of long-term earning capacity.
20220002-CA 16 2023 UT App 20Myers v. Myers
¶35 No such evidence is present here. Amy has obtained a full-
time salaried position that pays her a steady income of $45,000 per
year. There is no indication that this job is only temporarily
available to her. The evidence was undisputed that Amy’s earning
capacity, moving forward, has increased, as exemplified by her
new job; indeed, she testified that she has “the ability to earn at
least $3,750 a month” at that job, and that she would be able to
“do that moving forward.” The district court’s observation that
Amy had not “obtained extra education” in an effort to grow her
earning capacity is true as far as it goes. But even in the absence
of any extra education or training, a spouse’s earning capacity can
rise, and a spouse’s ability to obtain and maintain a salaried job is
an extremely strong piece of evidence so indicating.
¶36 We certainly take the court’s point that the reason Amy felt
compelled to find additional employment was because Jacob
made the decision to quit his job and pay her less in alimony. In
the court’s view, Jacob’s decision “forc[ed]” Amy “to find
additional employment.” We take no issue with the court’s
observation that the law should not incentivize payor spouses to
become voluntarily underemployed. But we do not think the law
contains any such incentive; indeed, the customary (and
presumably adequate) remedy for such behavior is for the court—
where appropriate, and as the court did here—to find the payor
spouse underemployed and impute to that spouse an income
commensurate with the previous salary.7
7. Moreover, we do not think it inappropriate, in the abstract, for
payee spouses to make an effort to enter the workforce, and
thereby pursue a higher standard of living and a greater degree
of independence from the payor spouse. We recognize that many
spouses who have long been out of the workforce may find it
difficult to reenter it, with or without additional education or
training; generally speaking, our law does not require payee
(continued…)
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¶37 Thus, we conclude that the district court erred in its
analysis of Amy’s earning capacity. It erroneously determined
that Amy’s earning capacity had not changed. And based on this
determination, it stopped short of making a specific finding as to
what Amy’s new earning capacity was, taking into account her
new full-time job and, if appropriate, her part-time side
endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189,
¶ 31, 437 P.3d 411 (“When determining an alimony award, it is
appropriate and necessary for a trial court to consider all sources
of income that were used by the parties during their marriage to
meet their self-defined needs, including income from a second
job.” (quotation simplified)). The court should remedy these
errors on remand, and should complete the calculation regarding
Amy’s expenses and earning capacity, thus answering the
question Jacob raises, namely, whether Amy has the ability to take
care of her own needs through her own income.
¶38 Finally, the court’s analysis regarding Jacob’s ability to
provide support was also incomplete, and will require additional
analysis in the event the court concludes that Amy is not
completely able to pay for all of her reasonable monthly needs.
See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219(“[I]f the court finds that the recipient spouse is not able to meet
her own needs, then it should assess whether the payor spouse’s
income, after meeting his needs, is sufficient to make up some or
all of the shortfall between the recipient spouse’s needs and
spouses in that situation to attempt to reenter the workforce in
ways incongruous with their employment history. But a spouse
who, whether by chance or perseverance, manages to gain a
foothold in the workforce after a long absence may very well
benefit from the experience; as we see it, our law should
encourage self-sustainability and independence. Accordingly, we
do not necessarily view—as the district court seemed to—the
outcome of Amy’s employment journey to be an unfortunate one.
20220002-CA 18 2023 UT App 20Myers v. Myers
income.” (quotation simplified)). As already noted, the court
imputed to Jacob a monthly income of $8,233, based on a finding
of voluntary underemployment, and that determination is not
challenged on appeal. But in order to compute Jacob’s ability to
provide support to Amy to cover any determined shortfall, the
court will need to compute Jacob’s reasonable monthly expenses,
see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings
should also address the obligor’s needs and expenditures, such as
housing, payment of debts, and other living expenses.” (quotation
simplified)), which the court did not endeavor to do in its order.
¶39 As to whether a shortfall exists, the parties take divergent
positions on appeal. Jacob asserts that no shortfall exists, and that
Amy is able to pay all of her own reasonable monthly expenses.
Amy, for her part, contends that even with her newly increased
income she still has “a shortfall of over $1,800.” But Jacob’s
alimony obligation ($2,300) apparently exceeds even Amy’s
current calculation of her shortfall; under Amy’s computation of
expenses, then, Jacob would still be entitled to at least some
modification of his alimony obligation. On remand, the district
court should run this complete calculation, making specific
findings on each of the relevant factors, and should determine the
extent to which Jacob’s alimony obligation should be modified.
CONCLUSION
¶40 The district court did not apply the proper legal analysis to
Jacob’s petition to modify, and erred when it concluded that
Amy’s earning capacity had not changed. We reverse the court’s
denial of Jacob’s petition to modify, and remand this case for
further proceedings consistent with this opinion.
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