Brent and Elena Christensen divorced in 2012. They were awarded joint physical and legal custody of their minor children. Brent was ordered to pay $545 in child support and $1,200 per month in alimony to Elena. Brent was earning $4,749.15 as a school teacher. Elena had been staying at home with the children during the marriage so did not have a recent work history. The Court found that she was capable of working and imputed to her a monthly wage of $1,365. (This order gave Elena about $3,110 per month, including her imputed income, and Brent about $3,004 per month after paying his child support and alimony. This does not consider the impact of taxes, but it seems to have been a generally fair-minded order).

Brent retired from his teaching job in September 2014 and Elena began receiving $800 per month from Brent’s pension. At the same time, Brent stopped paying child support and alimony. He was 58 years old at the time and had 32 years of service with the school district.

Brent filed a petition to modify, seeking to terminate his alimony obligation and reduce his child support obligation. He alleged that Elena was cohabiting with her boyfriend. He also claimed that he had a constitutional right to retire and that he desired to spend more time with his children as a stay-at-home parent.

Elena sought a judgment against Brent for unpaid child support and alimony.

Following a hearing on the petition, the court denied Brent’s petition to terminate alimony. Elena admitted that she was sharing a residence with her boyfriend and engaging in sexual relations with him. However, she denied that she shared living expenses, assets, or bank accounts with him.

The Court, in denying Brent’s petition to terminate alimony, found that Elena and her boyfriend did not hold themselves out as husband and wife, did not share living expenses, and did not share assets or bank accounts.

The Court found that Brent, although he was retired, was still capable of working and earning a wage of $4,700 per month, consistent with his historical earnings. The Court denied Brent’s petition to modify child support, holding that child support should remain at $545 per month based on the parties’ incomes.

The Court did lower Brent’s alimony down to $400 per month based on Elena’s receipt of $800 per month from Brent’s retirement.

Lastly, the Court entered a judgment against Brent in favor of Elena in the amount of $19,043.61 for unpaid child support and alimony.

Brent appealed. He made four basic assertions of error: 1) that the trial court erred in finding that the evidence did not establish cohabitation between Elena and her boyfriend ; 2) that the trial court erred in finding him capable of employment; 3) that the trial court erred in not modifying alimony retroactively to the time Elena was served with his petition to modify; and 4) that the trial court erred in its child support calculation.

Brent’s contention regarding Elena’s alleged cohabitation was a mixed question of law and fact. The standard of review in this issue was therefore mixed — the trial court’s findings of fact were reviewed under an abuse of discretion standard, but the trial court’s ultimate conclusion respecting cohabitation was reviewed for correctness.

Brent’s other three contentions were reviewed under an abuse of discretion standard.

With respect to cohabitation, the factors were laid out in the case of Myers v. Myers, 2011 UT 65, 266 P.3d 806. Cohabitation must have the general hallmarks of marriage including a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions. Other things to consider are: 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., paragraph 24 n.4.

Notably absent in this analysis is whether or not the couple holds themselves out as husband and wife. This is a factor in establishing a common law marriage, but not in determining cohabitation.

The trial court erred in using the “holding out as spouses” element as a part of its cohabitation analysis. The Appeals Court could not determine that this was harmless error based on the record, and so it remanded the case on this issue for a rebalancing of the cohabitation factors to determine in the first instance whether Elena had cohabited with her boyfriend.

With respect to Brent’s imputation of income, the Court of Appeals noted that imputed income must be based on a finding that a party is unemployed or underemployed and must be based upon employment potential and earnings prospects considering: employment opportunities, work history, occupation qualifications … and prevailing earnings and job availability for persons of similar background in the community. See Utah Code Ann. Section 78-B-12-203(8)(b)

Moreover, “[i]mputation cannot be premised upon mere conjecture; instead it demands a careful and precise assessment requiring detailed findings.” Rayner v. Rayner, 2013 UT App. 269, paragraph 20, 316 P.3d 455.

The trial court made detailed findings regarding voluntary unemployment and imputation, which Brent did not challenge.

Brent preferred four reasons why he was not working: 1) that he had a constitutional right to retire after teaching for 32 years in the public school system; 2) that he was forced to retire by the Ogden City School District; 3) that many of his peers who were the same age and whose wives had not divorced them were retired; 4) that he desired to be a stay-at-home parent and spend more time with his children.

The Court dispatched the first contention, noting that there is no constitutional right to retire.

With respect to his claim that anxiety and stress of the divorce had forced him to retire from teaching, the Court did not find an abuse of discretion in the trial court’s finding that Brent retained the ability to adjust to employment despite some legitimate anxiety issues.

Brent took issue with the court’s calculation of child support, but he had not proven a substantial and material change of circumstances to justify modifying child support.

With respect to Brent’s claim that the statute required the court to make an alimony modification retroactive to the month following the date of service of the petition to modify on Elena, the Court acknowledged that Brent’s argument had support in some language of the statute. However, in construing the statute in its entirety, the Court sided with prior precedent holding that whether or not to make a modification of child support or alimony retroactive was a matter of discretion for the trial court.

As a side note, Elena had asked the appellate court to vacate a judgment of arrears that Brent had obtained against her for health insurance premiums. But this claim of error was not properly before the court because she had not brought it either by way of cross-appeal or by separate petition for interlocutory appeal. Parties must bring a cross-appeal or cross-petition if they wish to attack a judgment of a lower court in order to enlarge their own rights or lessen the rights of their opponent. See State v. Smith, 924, P2d 354, 355 (Utah 1996).

In sum, terminating alimony by showing cohabitation (which is difficult under the Myers test) is not the same as establishing common law marriage. There is no constitutional right to retire (although I certainly don’t blame Brent for trying). Retroactivity is within the discretion of the trial court when modifying an alimony award. And a cross-appeal or cross-petition should be brought if one wishes to attack the judgment of a lower court in order to enlarge their own rights or lessen those of an opponent.

See Christensen v. Christensen, 2017 UT App 120.

This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.