Alimony and Imputing Income for Unemployment.

As part of these analyses [for alimony], “courts in divorce cases may consider imputing income to an unemployed spouse in assessing the spouse’s ability to produce income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 10; see also Utah Code Ann. § 78B-12-203(8)(b) (dictating that imputed income “shall be based upon employment potential and probable earnings considering” various enumerated factors).5 ¶11 “Although not required to impute income, a finding of voluntary unemployment or underemployment may be relevant” in the imputation analysis. Hartvigsen v. Hartvigsen, 2018 UT App 238, ¶ 16, 437 P.3d 1257 (cleaned up); see also Rayner v. Rayner, 2013 UT App 269, ¶ 10 n.4, 316 P.3d 455 (“While the current statute no longer refers explicitly to a finding of voluntary unemployment or underemployment, . . . [such a finding] remain[s] relevant.” “A spouse is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or underemployed.” Rayner, 2013 UT App 269, ¶ 7 (cleaned up). “A person who has been involuntarily terminated from a position may thereafter become voluntarily underemployed by not attempting in good faith to obtain new employment . . . or by refusing to accept suitable employment offers.” Busche v. Busche, 2012 UT App 16, ¶ 21, 272 P.3d 748 (cleaned up). In connection with this inquiry, we examine “what the spouse has done in the aftermath of [the] termination to determine whether he or she has become voluntarily underemployed by virtue of his or her failure to then make reasonable efforts to obtain employment at a pay rate comparable to that of the lost employment.” Rayner, 2013 UT App 269, ¶ 8 (cleaned up). An imputation analysis also involves consideration of the unemployed spouse’s employment capacity and earning potential. Id. “Employment capacity involves consideration of the spouse’s abilities and limitations, qualifications, experience, and skills.” Id. (cleaned up). ¶12 However, income may not be imputed “in contested cases” unless the district court “enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12- 203(8)(a). And “if the district court were to take the discretionary step of imputing income, the imputation would have to be based upon evidence related to employment potential and probable earnings.” Pulham v. Kirsling, 2019 UT 18, ¶ 41, 443 P.3d 1217; see also Busche, 2012 UT App 16, ¶ 22 (“At a minimum, the [district] court must determine [an individual’s] employment capacity and earnings potential before it can logically conclude that he is, in fact, underemployed.” (cleaned up)). ¶13 Here, the district court exercised its discretion to decline to impute James’s previous L-3 level of income to him; the court based its decision on James’s disabilities and unsuccessful efforts to obtain gainful employment. Tish argues that “the court did not evaluate [James’s] job skills, abilities, and current earnings,” and Tish highlights facts favorable to her position such as the job offer James received from Woodbury, his work at the Salt Lake City Library, and his testimony that he studied for forty hours a week in his attempt to obtain a master’s degree. But this argument crumbles under the weight of careful scrutiny because the court, in fact, analyzed those details. ¶14 To start, the court did evaluate James’s skills and abilities, and it specifically concluded that imputation of his previous level of income was not warranted: 6. [James] is currently involuntarily unemployed in that since his firing, he has made every effort to network, apply for jobs, interview for jobs, become a better candidate for jobs, yet has failed to secure any offers of employment. . . . . 9. Imputation to [James] of income beyond $3,698.32 is improper because [James] has made good-faith efforts to secure remunerative employment since his job was terminated and his ability to work based upon his disabilities renders it impossible for him to earn the income which he earned until he was fired. ¶15 In so concluding, the court noted James’s specific disabilities and that James “has applied for more than [800] jobs, and he has attended all interviews that he secured.” The court relied on the VA’s letter rating James’s disabilities as one hundred percent. The court also noted James’s master’s degree studies and his vocational rehabilitation through the VA as not being bases to impute the requested income to James. See infra ¶¶ 17–18. Thus, the court considered both James’s abundant efforts to obtain a job and his lack of employment capacity due to his disabilities in coming to its conclusion. See Rayner, 2013 UT App 269, ¶ 8. ¶16 In bringing up James’s job offer from Woodbury, Tish’s argument fails to mention that James never ended up working in that position because the job offer was contingent upon Woodbury securing a contract it was in competition for and did not receive. The argument also loses its persuasive value when we consider the chronology of James’s occupational efforts. Woodbury extended its job offer to James about a month after he was fired from L-3 in the summer of 2016, which was two years before the court granted James’s petition to modify. In the meantime, James networked with former work colleagues, applied for over 800 jobs, and did not receive a single job offer, which the court characterized as his “good-faith efforts.” Thus, the Woodbury job offer told the court very little about James’s efforts and employment capacity when the additional evidence was brought to light at the evidentiary hearing. ¶17 The district court was also well-aware of James’s work at the library, which was part of a feasibility study with the VA, was intended to place James in a job that would not aggravate his disabilities, and led to the VA paying for his master’s degree studies. Simply put, it was reasonable for the district court to view the position at the library as an atypical employment arrangement for vocational rehabilitation upon which there was an insufficient basis to impute James’s previous level of income to him, given the position’s temporary and rehabilitative qualities. ¶18 And Tish’s argument that James should be imputed the income because he testified that he studied forty hours per week neglects the other half of that scholastic story, namely the difficulties James was having with his studies. The court noted these difficulties, demonstrating that his studies were not a basis to impute income: 20. [James] has a processing disorder when reading that requires him to receive an accommodation software for school to be able to listen to his textbooks. 21. [James] receives an accommodation at school to have someone take notes for him because he cannot maintain focus and concentration throughout his classes. 22. [James] has several incompletes at school from not being able to keep up with the assignment schedule. ¶19 In short, Tish’s argument that the district court did not evaluate James’s skills and abilities is unpersuasive because the court did not ignore the facts that Tish highlights; rather, the court determined that the evidence was persuasive in James’s favor instead of Tish’s. See Nave-Free v. Free, 2019 UT App 83, ¶ 10, 444 P.3d 3 (explaining that “merely pointing to evidence that might have supported findings more favorable” is unpersuasive and that a party instead “must identify flaws in evidence relied on by the [district] court” (cleaned up)). Issertell v. Issertell, 2020 UT App 62 (Filed April 16, 2020).

Issertell v. Issertell, 2020 UT App 62 (Filed April 16, 2020)

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