Pankhurst v. Pankhurst

• Decision Date: 24 March 2022
• Docket Number: 20200772-CA
• Parties: Kristina PANKHURST, Appellee, v. Grant PANKHURST, Appellant.
• Court: Utah Court of Appeals

508 P.3d 612

Kristina PANKHURST, Appellee,

v.Grant PANKHURST, Appellant.

No. 20200772-CA

Court of Appeals of Utah.

Filed March 24, 2022

Steven B. Wall, Salt Lake City, Attorney for Appellant

Justin G. Berube, Salt Lake City, Attorney for Appellee

Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

CHRISTIANSEN FORSTER, Judge:

¶1 Grant Pankhurst appeals the district court's orders regarding child support and alimony. We affirm.

BACKGROUND

¶2 Grant and Kristina Pankhurst married in 2011, and Kristina filed for divorce in August 2018. Just prior to filing her petition, Kristina was visiting her mother in Alaska with the parties' three children. During the visit, Kristina learned information about Grant that prompted her to file for divorce. Grant, who works in the oil industry, travels extensively for work and was traveling at the time. Because she needed financial help from her family, Kristina decided to stay in Alaska permanently.

¶3 The parties each filed a motion for temporary orders. A commissioner issued a recommendation for temporary orders granting the parties joint physical custody and requiring Kristina to bring the children back to Utah. Kristina objected to the commissioner's recommendation and asked the district court to stay it. The court granted that request, and Kristina continued to live in Alaska with the children.

¶4 In December 2019, the parties reached a stipulation regarding custody of the children. They agreed that Kristina would have primary physical custody of the children and could remain in Alaska. They also agreed that if the parties lived within thirty minutes of each other or if Grant were to live within thirty minutes of one or more of the children's schools, he could exercise parent-time according to the joint custody schedule outlined in Utah Code section 30-3-35.1. However, until that time, Grant could exercise parent-time up to ten overnights per month at his option. By the time of trial in June 2020, Grant had not relocated and had not exercised any overnight parent-time in 2020.

¶5 The parties were unable to reach an agreement concerning, among other things, child support or alimony, and the court held a trial to decide those issues. In its pre-trial order, the court directed the parties to provide updated financial declarations with supporting documentation, copies of their federal tax returns for the past two years, copies of any W-2s and 1099s for the past two years, and copies of their three most recent pay stubs. Grant filed a financial declaration asserting that his gross monthly income was $4,784.01 and that his monthly expenses (less his temporary child support and alimony obligations) were $5,844.56. However, Grant "failed to provide the vast majority of the required supporting documentation for his Financial Declaration and only filed a single pay stub and one 2019 W2."

¶6 The parties' tax returns for years 2013–2017 had been submitted to the court and showed that Grant earned $9,299.84 per month in 2013, $9,434.21 per month in 2014, $10,604.87 per month in 2015, $8,334.00 per month in 2016, and $8,347.00 per month in 2017. Grant did not provide tax returns for 2018 or 2019. However, he testified that his income had decreased, due to a downturn in the oil industry, in the time since the divorce commenced. He did not provide an explanation for the decline in the industry between August 2018 and early 2020 but did assert that there had been a recent drop in demand for oil in the wake of the COVID-19 pandemic, which began only a few months prior to trial. He asserted that he had taken a 15% pay cut and was forced to take extended time off. He claimed that based on his income in 2020 up to the time of trial, he expected to earn only $4,784 per month. However, he did not provide supporting documentation for any of these claims.

¶7 At trial, a neighbor and friend of the parties testified that Grant had told him if he were to get divorced, "his employer would be ... willing to and be able to manipulate his pay or pay stubs to show he was making less money than he really was." Additionally, Kristina testified that Grant "always was able to choose his schedule" "depending on how much he wanted to bring in." She also testified that during their marriage, Grant's schedule and income had fluctuated from month to month but that his annual income stayed mostly consistent and he averaged $8,000 to $10,000 per month.

¶8 The court found that if there was any decrease in Grant's income, such a decrease was "temporary." The court also found that "Grant failed to provide the vast majority of the required supporting documentation for his Financial Declaration," only filing "a single pay stub and one 2019 W2." "Grant did not provide any bank statements, credit card statements, copies of bills or obligation[s], or any other record that would substantiate the monthly expenses Grant report[ed] on his Financial Declaration." "Grant testified that he had access to his 2018 and 2019 Federal tax returns" as well as "all of his pay stubs," but he did not provide them to the court. "Grant did not provide any testimony as to any circumstance that would have reasonably prevented him from accessing and providing the documents ...."

¶9 Because it considered Grant's alleged income change to be temporary, the court found that "Grant's income should be imputed at $9,095.47 per month" based on his "historical income" calculated from his 2013–2017 federal tax returns. As to Grant's monthly expenses, it concluded that based on the evidence before it, "Grant has reasonable monthly expenses of $3,505.06, excluding any child support [or alimony] obligation." The court also explained that its "findings ... regarding Grant's income and monthly expenses" were not only based on the evidence available but were also appropriate as a rule 37(b) sanction "for Grant's failure to provide the required documentation."

¶10 Although the parties' stipulation allowed Grant up to ten overnights with the children per month, the court determined that a sole custody child support worksheet was appropriate for calculating child support "[b]ased on the stipulated parent time schedule and based on Kristina's testimony that Grant has not exercised a single overnight parent time in 2020." The court observed that "Grant did not dispute that he has not taken a single overnight parent time visit with the minor children in 2020." Thus, the court ordered Grant to pay $1,625 per month in child support.

¶11 The court found Kristina's gross monthly income to be $3,040 and that she incurred reasonable monthly expenses of $5,624. The court found that Grant earned a net monthly income of $6,821.25. The court reduced Grant's net income by his $1,625 child support obligation and reduced Kristina's need by the same amount. Subtracting Grant's reasonable monthly expenses of $3,505.06 from his remaining income, the court determined that Grant had the ability to pay $1,691.19 per month and ordered him to pay Kristina $1,500 per month in alimony. The court did not make explicit findings as to Kristina's net monthly income or her total unmet need.

¶12 Grant now appeals the district court's child support and alimony orders.

ISSUES AND STANDARDS OF REVIEW

¶13 Grant asserts that the district court exceeded its discretion by (1) imputing income to him based on his historical income rather than using his current reduced income; (2) ordering him to pay alimony in excess of Kristina's need; and (3) using a sole custody worksheet to calculate child support.¹ "We review the district court's decisions regarding child support and alimony under the abuse of discretion standard." Anderson v. Anderson , 2018 UT App 19, ¶ 21, 414 P.3d 1069 (quotation simplified). "Courts have broad discretion to select an appropriate method of assessing a spouse's income, including determinations of income imputation." Bond v. Bond , 2018 UT App 38, ¶ 6, 420 P.3d 53 (quotation simplified). Appellants bear "a heavy burden, and we can properly find abuse only if no reasonable person would take the view adopted by the trial court." Goggin v. Goggin , 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified).

ANALYSIS

I. Income

¶14 Grant asserts that the district court erred by imputing income to him based on his historical income, rather than what he claimed were more current income figures, and by doing so without addressing whether he was voluntarily underemployed. According to Grant, district courts do not have the discretion "to disregard current evidence as to change[d] income in the absence of a finding ‘that the parent is voluntarily unemployed or underemployed.’ " (Quoting Hall v. Hall , 858 P.2d 1018, 1024 (Utah Ct. App. 1993) (quotation simplified).) In support of this assertion, Grant relies on holdings from this court that relied on a now-outdated version of the Utah Code. See Hill v. Hill , 869 P.2d 963, 965 (Utah Ct. App. 1994) ; Hall , 858 P.2d at 1024. Prior to 2007, the Utah Code required courts to make a finding that a spouse is voluntarily unemployed or underemployed before imputing income. See Rayner v. Rayner , 2013 UT App 269, ¶ 10, 316 P.3d 455. However, the current version of the Utah Code requires only that the judge "enter[ ] findings of fact as to the evidentiary basis for the imputation." Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2018); see also Rayner , 2013 UT App 269, ¶ 10, 316 P.3d 455. Thus, while "voluntary unemployment or underemployment may be relevant when considering whether a party is concealing income or shirking in his or her efforts to earn income, a finding of voluntary unemployment or underemployment is not a prerequisite to imputing income." Reller v. Argenziano , 2015 UT App 241, ¶ 33, 360 P.3d 768 (emphasis added) (quotation simplified). Rather, "the focus of the imputation analysis is ... on the detailed findings of fact necessary to support a decision to impute income rather...