The Appellate Group

Issertell v. Issertell

Issertell v. Issertell, 2020 UT App 62 (Mortensen, J.)


A couple divorced in 2015. Ex-husband’s alimony was set based upon his income at the time. He thereafter lost his job and petitioned to modify his alimony and child support obligations. He had military-related-service disability. Because of his disability, he began 12-hour-a-week employment at the local library and studied for a VA-funded master’s degree. He left his job at the library while attempting to maintain his studies. He eventually withdrew from his master’s program due to his disabilities. In the interim, he had applied to over 800 new jobs through various employment services. Ex-husband then remarried and his current wife funded his alimony and child support obligations through her personal savings and retirement accounts. Ex-husband filed a petition to modify. The district court granted the motion and used the doctrine of equalization of income. The Utah Court of Appeals affirmed, holding:

  • The district court properly determined that Ex-husband was unemployed. The court exercised its discretion when it based its decision on Ex-husband’s disabilities and unsuccessful efforts to obtain gainful employment. The court evaluated his skills and abilities, as well as his disability income from the military.
  • A former job offer that was later withdrawn does render Ex-husband’s unemployment voluntary. And his job at the library was reasonably seen as a temporary and rehabilitative employment arrangement intended to place him in a job that would not aggravate his disabilities. It was, therefore, reasonable for the district court to consider it an insufficient basis to impute Ex-husband’s previous level of income. Neither were his studies a basis to impute his previous income to him: he was receiving accommodation, had difficulty with his studies, and ultimately could not complete them because of his disability.
  • Ex-wife’s argument that Ex-husband’s income should be imputed at the federal minimum wage for a 40-hours a week was not preserved. Merely mentioning imputation below does not preserve all possible arguments in favor of imputation.
  • The district court did not abuse its discretion in refusing to consider Ex-husband’s current wife’s contributions to his alimony and child support as gifts. Ex-husband testified he intended to pay his current wife back, and she had used up all of her savings and was currently paying from her retirement account. Even so, Ex-husband’s current wife had no legal obligation to continue providing monetary support and could not be expected to continue providing financial gifts indefinitely.

Read the full court opinion