Imputing Income and Considering Income of New Spouse in Alimony Modification Case.

April 16, 2020

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

In setting alimony, “[t]he court may consider the subsequent spouse’s financial ability to share living expenses.” Utah Code Ann. § 30-3- 5(8)(i)(iii)(A) (LexisNexis 2018).¶25 Here, the district court did take into account the financial contributions of James’s current wife. It noted that James’s “monthly expenses are listed at $5,446.43. This figure already takes into account [James’s] new wife sharing in the household expenses and she is not expected to pay all of [James’s] expenses.” ¶26 The court also noted that James and his current wife have drained their savings accounts completely and have borrowed from his wife’s retirement account in trying to meet James’s obligations under the divorce decree. And there was testimony that James had an agreement to pay his current wife back, 8. The district court noted the parties’ respective monthly income shortfalls in invoking the doctrine. James’s expenses are $5,446.43, and his income is $3,698.32. Tish’s expenses are $5,088.70 with a monthly income of $2,407. Issertell v. Issertell 20190467-CA 12 2020 UT App 62 providing the district court an evidentiary basis to conclude that the money was not a gift. See Jones v. Cook, 223 P.2d 423, 425–26 (Utah 1950) (“A clear and unmistakable intention on the part of the donor to make a gift of h[er] property is an essential requisite of a gift inter vivos.” (cleaned up)). Even if this testimony didn’t exist, the court could not base its prospective order on past gifts that have no assurance of being continued because James’s current wife has no legal obligation to continue providing the monetary support that she has in the past. Therefore, Tish’s argument that the district court erred in not concluding that the financial contributions were endlessly perpetual gifts is unavailing.

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

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