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Anderson v. Anderson

Court of Appeals of Utah

February 1, 2018

Lynessa Michelle Anderson, Appellee,
Loren Price Anderson, Appellant.

         Fourth District Court, Provo Department The Honorable Samuel D. McVey No. 084400367

          Rosemond G. Blakelock, Attorney for Appellant

          Jill L. Coil and Luke A. Shaw, Attorneys for Appellee

          Judge Kate A. Toomey authored this Opinion, in which Judges Michele M. Christiansen and Jill M. Pohlman concurred.


          TOOMEY, Judge

         ¶1 Following a bench trial for Loren Price Anderson's petition to modify child support and alimony, the district court awarded Lynessa Michelle Anderson $1, 900 per month for alimony, $714.64 for child support, and $16, 403.44 in attorney fees. Loren[1] appeals these awards, contending the district court abused its discretion by (1) imputing income to him in the amount of $6, 662 per month; (2) awarding Lynessa alimony in excess of her actual needs; (3) awarding child support to Lynessa based on the improperly imputed income; and (4) awarding Lynessa attorney fees without "appropriate consideration of the relevant attorney fees factors."

         ¶2 We agree with Loren that the court abused its discretion in awarding Lynessa alimony in the amount of $1, 900 per month, but only to the extent that it erroneously considered retirement fund contributions in Lynessa's monthly expenses, because they were not enjoyed during the marriage, and we remand solely for removal of that amount from the alimony award. But we conclude there was no abuse of discretion when the district court included anticipated car loan payments and health insurance in Lynessa's monthly expenses, because alimony need not be based solely on current expenses.

         ¶3 We decline to address Loren's claims of error with respect to his imputed income and the award of child support based on his imputed income because he failed to support his argument with reasoned analysis using legal precedent.

         ¶4 Finally, the district court did not abuse its discretion in awarding attorney fees to Lynessa based on her need and Loren's ability to pay them.


         ¶5 Loren and Lynessa were married from 1989 to 2008. During their marriage, Lynessa stayed home to raise their four children while Loren worked as a contractor installing carpet and countertops. According to Lynessa, during the marriage Loren was "a workaholic, " "always looking for the next job, " and was a great provider for the family. Indeed, there was money for extras: two of their sons, Tyler and Steele, were on hockey teams that traveled for games, which could cost more than $7, 000 in fees and other expenses per year, which the family was able to pay. Loren also "sometimes [paid] for other kids' hockey tuition fees because their families couldn't afford it themselves." Tyler recounted that while his parents were married, "we never went without. . . . We had everything we needed."

         ¶6 After working for different companies for a few years early on in the marriage, Loren started his own contracting business. He primarily submitted subcontracting bids to Action Target, a construction company that provided installations for military, law enforcement, and commercial gun ranges. The money he earned was deposited into a checking account separate from Lynessa's checking account, and whenever Lynessa needed to pay bills or required funds for the children, Loren gave her cash. Lynessa was never privy to what Loren earned for each project and was rarely made aware of the identity of the contractor. But Tyler, Steele, and Lynessa each observed Loren carrying a great deal of cash. After a project's completion, Loren paid cash to his workers.

         ¶7 In 2006, the Andersons' marriage started to break down. Loren admitted he was "having some troubles at that time" and began using drugs. By Lynessa's account, Loren was no longer "in his right mind set" and he became "very promiscuous" and she "didn't want him around anymore." Loren's drug use rendered him incapable of earning an income for a time and it ultimately led to their divorce.

         ¶8 In 2008, the district court entered a default decree of divorce after Loren failed to respond to Lynessa's petition. Because Loren did not respond and failed to assist the court with financial documents, the court relied on his 1099 Form from 2007 showing an annual income of $219, 246 "or $18, 271 per month" to determine his ability to pay child support and alimony. The court imputed income to Lynessa in the amount of $1, 014 per month. Ultimately, Loren was ordered to pay $2, 945 per month for child support and $2, 719 per month for alimony. The child support obligation was to be reduced as each child reached the age of eighteen, and the alimony obligation was to continue for a period equal to the length of the marriage.

         ¶9 Beginning around the time of the divorce, Loren pleaded guilty to drug and fraud related crimes and was in and out of jail for three years. Though he was obligated to pay Lynessa a total of $5, 664 each month for alimony and child support, he rarely paid and never in the full amount. When he did pay, it was always in cash, until the Office of Recovery Services (ORS) became involved. Lynessa testified, "We would go long periods of time without anything from [Loren]. For the longest time he was paying 200 a month, and he just recently changed it to paying [550]." Even after ORS became involved, Lynessa received only $600 per month for combined child support and alimony. This required Lynessa to receive financial assistance from her church, friends, and family. She also sold some of her gold, jewelry, and other items to provide for herself and the children. But even with this help, she was always behind on bills, and neither she nor the children lived a lifestyle similar to what they enjoyed during the marriage. Tyler testified that their living conditions changed after the divorce, that Lynessa could not fix things around the house, that they relied on their church for food, and that without the money for alimony or child support, Lynessa worked as often as she could "even if it meant not seeing [the children] as often."

         ¶10 In 2011, Loren filed a petition to modify child support and alimony (the Petition) based on a substantial change in circumstances that resulted in a decrease in income from the time the divorce decree was entered. He alleged that he could not afford to pay child support or alimony because the amount he was ordered to pay was "in excess of [his] income." Loren claimed he had no income during his incarceration and a decreased ability to earn an income similar to what he had earned during the marriage because he could no longer maintain his own construction business.

         ¶11 Lynessa and Loren each filed financial declarations and other documents related to their respective incomes and expenses. Lynessa provided her 2014 tax return and pay stubs from 2015, which supported her net monthly income of $2, 572.01 as purported in her financial declaration, and claimed monthly expenses in the amount of $5, 496.21. Loren provided incomplete tax returns for the years he had actually filed them and monthly pay stubs from one employer with hourly rates that varied from about $20 per hour to $33 per hour. But Loren claimed he was earning only $11 per hour, or $2000 per month.

         ¶12 The district court held a bench trial in 2015 to resolve the issues Loren raised in the Petition. At trial, most of the testimony related to Loren's ability to earn income, whether he was actually earning only $2, 000 per month, and whether he or his new wife (New Wife) owned a construction company.

         ¶13 Around the time Loren filed the Petition, he had initiated a romantic relationship with New Wife and helped her to register a construction company, Steelcoat. New Wife had never owned a business before, let alone a construction company, and both New Wife and Loren admitted that she relied on Loren to operate Steelcoat. Loren claimed he was only an employee of Steelcoat and made just $11 per hour, or $2, 000 per month, but also admitted at trial that he was the "face [of Steelcoat] to a lot of people at Action Target"-the construction company that subcontracts most of Steelcoat's work and with which Loren has had a long professional relationship.

         ¶14 Loren's claimed income and whether New Wife was indeed the sole proprietor of Steelcoat were called into question when New Wife admitted that Loren helped create all of the bids Steelcoat sent to different companies and that she was not sure whether the bids needed to be signed before submission. In addition, a representative from Action Target testified that submitting bids is "pretty specific" and "detailed" work that requires a bidder to have "at least done some [installation] work before, or be guided in what it takes to do it." The representative also testified that Action Target works closely with its subcontractors during projects and that when it accepts Steelcoat's bids the company communicates with Loren and not with New Wife. Further, Loren admitted that Action Target has hired him, personally, to complete certain of its projects, but he did not provide any information related to the payments he received for those projects.

         ¶15 In addition to Loren's failure to provide the court with a complete tax return, other than a 2004 tax return, to support his claimed monthly income of $2, 000 per month, Lynessa's attorney elicited testimony from Steele that further negated Loren's claim about his income. Steele testified that when he asked Loren for financial help for hockey fees just before the trial, Loren responded that if Lynessa "would stop coming after him [for] money" that "it would be easier for him to not have to hide what he's doing." And when the court asked about his ability to earn a better income, Loren ...

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