Burggraaf v. Burggraaf

455 P.3d 1071

Carol BURGGRAAF, Appellee,

v.Brian Joseph BURGGRAAF, Appellant.

No. 20180405-CA

Court of Appeals of Utah.

Filed November 29, 2019

Julie J. Nelson, Erin B. Hull, and Benjamin G. Larsen, Salt Lake City, Attorneys for Appellant

Suzanne Marelius, Attorney for Appellee

Judge Kate Appleby authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

APPLEBY, Judge:

¶1 In April 2018, Brian Joseph Burggraaf and Carol Burggraaf divorced after nearly twenty-two years of marriage. Following a bench trial, the district court entered findings of fact and conclusions of law and granted a decree of divorce. Joseph¹ contends the court erred when it (1) imputed income to him for the purpose of calculating child support and alimony, (2) determined he owed unpaid child support, (3) found the majority of his student loans to be separate debt, and (4) set his budget for the purpose of calculating alimony. Joseph also contends the court's overall property distribution was inequitable. We affirm in large part but vacate the modest alimony award.

BACKGROUND²

Education and Work History

¶2 Joseph and Carol married and had five children. A few years into the marriage, Joseph decided to pursue a medical degree and the family moved to Colorado for his studies. Joseph has a learning disability that hinders his ability to "process[ ] new information," and as a result he struggled academically during medical school. With testing accommodations, he was able to pass the first two medical board exams, but only after attending a tutoring program in Illinois. The parties agree that it cost approximately $4,000 each time Joseph attended the program, but they disagree as to whether the medical school or Joseph's student loans paid for it, though Joseph offered no evidence to show the medical school had paid for the program. Joseph graduated with a medical degree and approximately $260,000 in student loan debt.

¶3 After graduating from medical school, Joseph did not obtain a full-time residency but was able to secure a temporary position in the state of Washington. He was not offered a permanent position there and was unemployed for one year. Joseph returned to the Illinois tutoring program as a preemptive measure for the third and final board exam, passage of which is required to become a licensed practicing physician. Although he finished the tutoring program, Joseph did not immediately take the exam. Instead, he obtained another temporary residency in Georgia but was fired after thirteen months. Joseph then took the final board exam and failed. He returned to Illinois for the tutoring program but ultimately did not retake the exam because he decided he "would not likely pass." After considering these facts, the district court determined Joseph "chose to abandon his pursuit of work in the medical field."

¶4 During Joseph's medical school and residency pursuits, Carol was "mostly a stay at home mother" who occasionally taught piano lessons to earn extra money. At trial she testified that the family's frequent moves made it difficult for her to maintain a consistent client base for these lessons. While Joseph was in medical school and residency, the family received government and charitable assistance to make ends meet. At the time of trial, Carol earned approximately $1,100 per month.

¶5 Since deciding to forgo becoming a licensed physician, Joseph's employment history was sporadic. He was a substitute teacher earning $82 per day for a short time before starting his own business funded by a $16,500 loan from his father. The business failed after a few months; Joseph recouped the investment, but he earned nothing more. He then took seasonal contracting work, earning between $1,863 and $2,900 per month for six months. After that, he sold insurance for a few months; in his "best month" he earned about $900. At the time of trial, Joseph was earning $1,200 per month at a river "tubing" business, working ten-to-twenty hours per week during the off-season and seventy-to-eighty hours per week in the summer. Joseph testified that he also was attending school in pursuit of a master's degree, which put his student loans in deferment.

The Divorce

¶6 The parties separated following a domestic violence incident, and Carol was granted temporary custody of their five children. Joseph later pled no contest to the criminal charges and was convicted of a class B misdemeanor.³ Approximately six months later, Joseph began paying Carol $200 per month for child support, which he calculated on his own without a court order.

¶7 The divorce was finalized three years after the date of separation following a four-day bench trial. After hearing evidence from both parties, the court determined Joseph was willfully underemployed and imputed his income for the purposes of calculating child support and alimony, granted Joseph and Carol joint physical and joint legal custody of the children, determined Joseph owed Carol unpaid child support, found the majority of Joseph's student loans to be separate debt, and awarded Carol alimony. The court also distributed the marital property and debts, accounting for offsets and credits as necessary.

Income Imputation

¶8 Both parties asked the district court to impute the other's income because each claimed the other was willfully underemployed and his or her claimed income did not reflect his or her employment potential.

¶9 The court determined Carol was not willfully underemployed and, using her previous three years' tax returns, imputed to her a monthly salary of $1,750. But the court found Joseph was willfully underemployed and had "substantially undermined the financial stability" of the family. The court noted Joseph's history of being secretive about his finances and said he had "lacked candor with [Carol] and the Court." The court found it significant that Joseph did not "pursue[ ] employment associated with his medical degree" and that his "choices of employment [were] significantly different, without believable explanation, depending on if the parties were together or separated." Further, Joseph did not provide the court with information about "all of his financial accounts" and "ha[d] been untruthful about the true nature of his income and assets." Joseph also failed to provide evidence of "his current paycheck being deposited."

¶10 Although Carol asked the court to impute a medical doctor's salary to Joseph, the court declined to do so, as it was too speculative. Because neither party presented evidence to show what a person in Joseph's situation—holding a medical degree but not being a licensed physician—could earn in the local area, the court was left to cobble together an average monthly income using Joseph's earnings when he owned his business and did contracting work as "the most credible evidence of [his] potential income." The court found it "equitable and just to impute" to Joseph a monthly income of $3,421.

Child Support and Child Custody

¶11 The district court granted Carol and Joseph joint physical and joint legal custody of their five children. In its order, the court gave the two eldest children "broad discretion to exercise parent time in whatever amount they fe[lt was] appropriate with either parent," although they were "not obligated to exercise said parent time." The court also recommended the three eldest children "participate in reunification therapy" with Joseph, which they "may attend if they so desire but will not be forced." With regard to the three youngest children, the court gave Joseph overnight parent-time every other weekend and one weeknight every other week and, during the other weeks, one non-overnight midweek visit. Carol was given "all other regular parent time not awarded to" Joseph, with the parties sharing statutorily prescribed holiday time and summer vacation.

¶12 In determining Joseph's child support obligation, the court acknowledged the parties stipulated to joint physical custody but noted Carol was in reality the "primary custodial parent" and thus "responsible for all of the day-to-day out-of-pocket expenses for the children while they are with [her]." Joseph also testified he never had more than every other weekend with the two eldest children and Carol testified their middle child "often chose[ ] to do other things" than stay with him. Although Joseph calculated his child support obligation on his own to arrive at his $200 monthly figure, he failed to take into account the fact that only the two youngest children were with him for 142 nights, or more than thirty percent of the year.⁴ Because of this, the court used the sole custody worksheet to determine Joseph's child support obligation.

¶13 The court gave Joseph credit for paying $200 per month (a total of $4,847.50) but, because it decided Joseph's child support obligation was actually $1,138 per month during that period, he owed Carol more than $40,000 in unpaid child support.

Student Loans

¶14 At trial, Joseph argued his student loans, which were "in excess of $260,000," should be considered a marital debt. He claimed only $59,551.34 of the money was used for medical school tuition and the rest was used for family expenses. He testified that the medical school paid for all books, laboratory coats, and equipment, such as stethoscopes. Carol denied this and testified that not only was the family using government assistance and charitable donations to pay their living expenses, but Joseph kept the money from his student loans in a separate account to which Carol had no access. Evidence also showed Joseph incurred "extra costs" such as "equipment, study aids, tutoring resources and [the Illinois] preparation course based on his perceived need due to his processing/learning disorder that were above and beyond the tuition expenses." To dispute this, Joseph offered into evidence bank statements from two months showing a total of $3,308 in student loan money was deposited into the couple's joint account, which...