Christensen v. Christensen

400 P.3d 1219

Elena Kay CHRISTENSEN, Appellee,

v.Brent CHRISTENSEN, Appellant.

No. 20150994-CA

Court of Appeals of Utah.

Filed July 20, 2017

Randall W. Richards, Salem, Attorney for Appellant.

Elena Kay Christensen, Appellee, Pro Se.

Judge J. Frederic Voros Jr. authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.

Opinion

VOROS, Judge:

¶ 1 Brent Christensen and Elena Kay Christensen (now Elena Watts) divorced in 2012.¹ 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.

BACKGROUND

¶ 2 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.

¶ 3 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.²

¶ 4 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.

¶ 5 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."

¶ 6 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.

¶ 7 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."

¶ 8 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.

ISSUES AND STANDARDS OF REVIEW

¶ 9 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.

¶ 10 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 omitted).

¶ 11 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.

¶ 12 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 v. Andrus , 2007 UT App 291, ¶ 9, 169 P.3d 754.

ANALYSIS

I. Cohabitation

¶ 13 Brent contends that the trial court erred in ruling the evidence of shared common residency and consistent sexual relations did not establish cohabitation. Specifically, he argues that "the evidence established that [Elena] was living together with her boyfriend as a family, sharing the same bedroom and engaging in normal sexual relations." He also alleges that the trial court "ignored [Elena's admission] that she paid rent and all of the expenses for food and everything" in the household. Finally, he argues that the fact that Elena and her boyfriend did not hold themselves out to be husband and wife has never been a criterion for determining cohabitation.

¶ 14 "Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person." Utah Code Ann. § 30-3-5(10) (LexisNexis 2013). Utah courts have not delineated a list of required elements for cohabitation, but instead have identified "general hallmarks of marriage (and thus cohabitation)." Myers II , 2011 UT 65, ¶ 24, 266 P.3d 806. "Those hallmarks include a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions." Id. Other relevant considerations include "the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together." Id. ¶ 24 n.3. However, whether the couple has a reputation as being married, or hold themselves out as being married, is not a relevant consideration in determining cohabitation for purposes of section 30-3-5(10). Id. ¶ 24 n.4.³

¶ 15 Here, Elena acknowledged that she was sharing a bedroom with her boyfriend.

However, when asked whether she was cohabiting with him, she responded that after she was evicted from her home, she "had nowhere to go so [she] moved in at [his] address." She signed a written "Living Arrangement Agreement" in which she agreed to pay $500 per month "to help with the payment of the mortgage and the cost of utilities as part of [her] contribution of living expenses" for herself and her four children.

¶ 16 The trial court noted that Elena admitted that "she shares common residency with a man and that they have sexual relations." The court reasoned that although these factors are relevant, "they do not satisfy the definition of cohabitation" under Myers I , 2010 UT App 74, 231 P.3d 815, and related cases. The court then considered the following additional factors. First, it found "no evidence that [Elena] held herself out as the wife [of] the boyfriend." The court also found that she and the boyfriend "did not have a reputation as husband and wife." Finally, it found no evidence that she "shared living expenses, assets, or bank accounts with the boyfriend." Relying on these factors, the court concluded that the "evidence is insufficient to establish cohabitation as outlined in [ Myers I ]." It therefore denied Brent's petition to terminate alimony on the basis of cohabitation.

¶ 17 First, as noted above, Brent is correct that whether two people hold themselves out, or have a reputation, as being married plays no part in the cohabitation analysis for purposes of determining whether alimony must be terminated. See Myers II , 2011 UT 65, ¶ 24 n.4, 266 P.3d 806. Thus, the trial court erred in relying on this factor. However, the court correctly found that no evidence supported a finding that Elena and her boyfriend share living expenses, assets, or bank accounts. On the contrary, she...