District Court, Ogden Department The Honorable Ernest W.
Jones No. 094901718
Randall W. Richards, Attorney for Appellant.
Kay Christensen, Appellee Pro Se.
J. Frederic Voros Jr. authored this Opinion, in which Judges
Kate A. Toomey and David N. Mortensen concurred.
Brent Christensen and Elena Kay Christensen (now Elena Watts)
divorced in 2012. 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 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.
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.
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.
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.
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."
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.
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."
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.
AND STANDARDS OF REVIEW
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.
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, 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
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.
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 ...