Busche v. Busche
| Decision Date | 20 January 2012 |
| Docket Number | No. 20080388–CA.,20080388–CA. |
| Citation | 2012 UT App 16,272 P.3d 748,700 Utah Adv. Rep. 6 |
| Parties | Lori Ann BUSCHE, Petitioner, Appellee, and Cross-appellant, v. Matthias BUSCHE, Respondent, Appellant, and Cross-appellee. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Rosemond G. Blakelock, Provo, for Appellant and Cross-appellee.
Douglas B. Thayer and Andrew V. Wright, Provo, for Appellee and Cross-appellant.
Before Judges ORME, DAVIS, and ROTH.
¶ 1 Matthias Busche (Husband) appeals the district court's denial of his motion to modify his child support and alimony obligations following his termination from employment and subsequent employment at a lower salary. Husband also contends that the district court abused its discretion when it ordered him to pay $20,000 in attorney fees. Lori Ann Busche (Wife) filed a cross-appeal, in which she challenges the district court's decision to award her only $20,000 of the $51,000 she requested in attorney fees. We reverse the district court's finding that Husband's job loss did not amount to a substantial change of circumstances because he was voluntarily underemployed and remand for reconsideration of whether he was in fact voluntarily underemployed. We affirm the attorney fees award of $3324.71 resulting from the August 29, 2005 order to show cause hearing but reverse and remand for reconsideration of the remaining attorney fees award.
¶ 2 The Busches married in June 1995 and divorced on January 7, 2005. At the time of the divorce, Husband was earning a gross monthly salary of $7067. The parties have five children, and Wife stayed home to care for them. As part of the stipulated divorce decree, the parties agreed that Husband would pay $1766 per month in child support and $1545 per month in alimony, for a total of $3311 in monthly support obligations.
¶ 3 Husband's employment as a manager for Tahitian Noni, however, ended on January 28, 2005, shortly after the divorce decree was entered. On June 21, 2005, Husband filed a verified petition to modify the support obligations of the divorce decree, citing his termination from employment through no fault of his own as “a substantial and material change in circumstances with regard to [his] income.” The termination of Husband's employment followed written warnings from his employer in March 2004 and in December 2004, requiring him to correct certain behaviors the employer considered inappropriate. After discharging him as a regular employee, Tahitian Noni retained Husband as a contract employee at a rate of $5000 monthly. When the contract ended in early 2006, Tahitian Noni declined to renew it, and Husband remained unemployed until October 2, 2006, when he began work with SupraNaturals at a monthly salary of $4583.33.
¶ 4 The district court held a bench trial on June 7, 2007, to determine whether Husband's change in employment and coinciding pay decrease warranted a modification of the child support and alimony obligations as specified in the divorce decree. In its subsequent memorandum decision, the court attributed Husband's “less remunerative salary” to “his refusal to accept the [March and December 2004] warnings from his supervisor at Tahitian Noni to change his behavior and work habits,” even though he had agreed, less than two weeks after the second warning, to pay a combined $3311 per month in child support and alimony. The court therefore found Husband to be voluntarily underemployed. Based on this finding, the district court determined that there was no substantial change in circumstances to warrant further consideration of Husband's petition to modify the decree's support orders.
¶ 5 The district court also awarded Wife some, but not all, of her attorney fees. Wife requested over $51,000 in attorney fees, which she incurred in the course of earlier order to show cause (OSC) proceedings as well as in connection with the trial on Husband's petition. The court granted Wife's request for $3324.71 in attorney fees from an August 29, 2005 OSC hearing. With respect to the remaining fees, the court found that Wife had prevailed at the OSC hearings and at trial and that she had shown a need but concluded that the attorney fees requested were “excessive.” It also determined that Husband, after factoring in his support obligations, had very little ability to pay. In this regard, the court refused to consider Husband's equity in the marital home as a source of ongoing income for purposes of determining his ability to pay attorney fees. Accordingly, it granted Wife attorney fees in the reduced amount of $16,675.29, bringing the total fee award to $20,000.
¶ 6 The district court's findings and conclusions regarding the modification petitions and the award of attorney fees were memorialized in the Findings of Fact and Amended Decree of Divorce.1 Husband now challenges the denial of his request for modification. Husband and Wife both appeal the attorney fees order.
¶ 7 Husband challenges the district court's decision that there had not been an unforeseeable and substantial change in circumstances that warranted modification of the divorce decree's child support and alimony orders. His contention of error, in essence, has two components. Husband claims that the district court erroneously found him to be voluntarily underemployed. He also argues that the court abused its discretion in determining that the voluntary underemployment did not result in a substantial change of circumstances that warranted modification of his support obligations. In making this determination, Husband argues, the district court failed to properly conduct the statutorily-required imputation analysis that is part and parcel of a finding of voluntary underemployment and instead simply imputed income to him at the amount he earned when Tahitian Noni fired him—$7067 per month. “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.” Young v. Young, 2009 UT App 3, ¶ 4, 201 P.3d 301 () (internal quotation marks omitted). An abuse of discretion can occur if a trial court misapplies the law in exercising its discretion. See State v. Barrett, 2005 UT 88, ¶ 17 & n. 5, 127 P.3d 682. We review the court's interpretation of statutory requirements for correctness. See Lilly v. Lilly, 2011 UT App 53, ¶ 6, 250 P.3d 994.
¶ 8 Husband also challenges the district court's decision to award Wife her attorney fees, arguing that the court failed to enter findings on three statutorily-required factors. While Wife purports to raise three issues for review, all of her claims relate to the issue of whether the district court properly awarded her attorney fees in an amount less than she requested. We review the district court's decision to award attorney fees in a modification proceeding for an abuse of discretion. See Wilde v. Wilde, 2001 UT App 318, ¶ 38, 35 P.3d 341.
¶ 9 Husband challenges the district court's determination that he was voluntarily underemployed and its consequent refusal to modify his support obligations. As an initial matter, we consider whether the district court properly used its finding of voluntary underemployment as the basis for its conclusion that there was not a substantial change in circumstances sufficient to warrant modification of the support orders.
¶ 10 We then address Husband's contention that the district court erred in finding that he was voluntarily underemployed pursuant to Utah Code section 78–45–7.5(7) (the imputation provision).2 To support this contention, Husband first argues that the court improperly relied upon deposition and affidavit testimony that was admitted only for impeachment purposes as the basis for its conclusion that Husband was terminated for cause. He then claims that even if the district court correctly determined that he had been terminated for cause, the court erred in equating termination for cause and voluntary underemployment. Rather, he argues the district court should have considered the factors identified in Hall v. Hall, 858 P.2d 1018 (Utah Ct.App.1993), to make the determination whether he was voluntarily underemployed.
¶ 11 Finally, Husband claims that the district court failed to properly conduct an imputation analysis. The primary focus of this argument is his claim that the evidence did not support imputation of his full previous salary. Husband also asserts that the court should have applied the 2007 version of the imputation provision, rather than the 2006 version.3
¶ 12 Utah law permits modification of child support and alimony orders when there has been a substantial change in circumstances. See generally Utah Code Ann. § 78B–12–210(9)(a) (2008) (); Utah Code Ann. § 30–3–5(8)(g) (Supp.2011) (). In the case of child support orders, “a substantial change in circumstances may include ... material changes of 30% or more in the income of a parent.” Utah Code Ann. § 78B–12–210(9)(b)(iii). In the alimony context, a substantial change in circumstances includes a change in income not anticipated in the divorce decree. See Bolliger v. Bolliger, 2000 UT App 47, ¶ 20, 997 P.2d 903; see, e.g., Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982) (...
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