Utah: Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances. BY: Michael R.

Link for opinion:  https://a.next.westlaw.com/Document/I8e558b83436e11e1bd928e1973ff4e60/View/FullText.html

Title:  Utah:  Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances.

The Utah court of appeals held in Busche v. Busche, 272 P.3d 748 (Utah App. 2012) that the loss of ex-husband’s job and resulting in a much lesser salary constituted a substantial change in circumstances in which it was reversed and remanded back to the circuit court to analyze whether or not he was in fact voluntarily underemployed.  The court also affirmed the attorney fees that the district court awarded the wife in the amount of $3324.71 resulting from the August 29, 2005 order, but reversed and remanded the additional attorney fees that were included in the cross-appeal.

The ex-husband lost his job with Tahitian Noni on January 28, 2005 at that time he was making a monthly salary of $7067.  After this he began contractural employment with Tahitian Noni for a salary of $5000 monthly which ended in early 2006.  He was unemployed until October 2, 2006, when he began work with SupraNaturals at a monthly salary of $4583.33.  The district court held a hearing on the basis that the husband was aware by way of warnings that he was in jeopardy of losing his job due to bad behavior.  In the process of the hearing the court found that since he agreed to the child support and alimony awards with the knowledge of his potential loss of job that he was in fact voluntarily underemployed and that it did not constitute a change to the order.

The appeals court decided that the reason the husband lost his job was due to misconduct and that alone cannot be a reason to be voluntarily underemployed.  The District Court conflated the substantial change in circumstances analysis with the imputation analysis.  The husband had a loss in income of 35% which falls under applicable law to be reviewed as a substantial change in circumstances. “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).

The attorneys fees awarded to the wife in the amount of $20,000 of which $3324.71 were upheld in the appeals court.  The court decided to remand the remaining amount of $16,675.29 back to the district court for further analysis based on the fact that the court did not distinguish between fees incurred to enforce existing support orders (OSC hearing fees) and those incurred in establishing a new order (trial fees) in making the award.

Tags:  Child support, modifying orders, underemployment, substantial change, imputation.