Issertell v. Issertell

2020 UT App 62

THE UTAH COURT OF APPEALS

JAMES J. ISSERTELL JR.,
Appellee,
v.
TISH KRISTINA ISSERTELL,
Appellant.

Opinion
No. 20190467-CA
Filed April 16, 2020

Second District Court, Farmington Department
The Honorable John R. Morris
No. 154700825

Brian E. Arnold and Lauren Schultz, Attorneys
for Appellant
Ryan J. Stanger and Melissa A. Aland, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.

MORTENSEN, Judge:

¶1 A divorce in 2015 ended the twenty-two-year marriage of
James J. Issertell Jr. and Tish Kristina Issertell. The district court
ordered James to pay child support and alimony based on his
level of income at that time. The next summer, however, James
lost his job. Later that year, he petitioned for a modification of the
divorce decree due to his military-service-related disabilities and
lack of success in obtaining employment, despite ultimately
applying for over 800 jobs. After a trial in 2018, the district court
granted James’s petition, concluding that James was involuntarily
unemployed and setting new child-support and alimony
Issertell v. Issertell

obligations. Tish appeals and contends that the court erred in
determining James’s income. We affirm. 1

BACKGROUND 2

¶2 In 2015, Tish and James’s twenty-two-year marriage ended
in divorce. At that time, James was working at L-3
Communications (L-3), earning a gross income of $8,670 per
month. Based on James’s level of income, the district court
ordered him to pay $1,497 in child support and $2,500 in alimony
per month.

¶3 In the summer of 2016, James was fired from L-3 due to
comments he made about software changes and perceived ethics
concerns during a company meeting. About a month later, he
received a job offer from Woodbury Technologies (Woodbury),
which was contingent upon Woodbury securing a contract for
which it was competing. Woodbury ultimately did not obtain the
contract, however, and James did not end up working there.

¶4 James thereafter continued to apply for jobs and petitioned
the district court to modify the divorce decree based on his
unemployment. In the time between the filing of his petition to

1. Because the parties have the same last name, we refer to them
by their first names throughout this opinion with no disrespect
intended by the apparent informality.

2. “On appeal from a bench trial, we view the evidence in a light
most favorable to the district court’s findings, and therefore recite
the facts consistent with that standard and present conflicting
evidence to the extent necessary to clarify the issues raised on
appeal.” Burggraaf v. Burggraaf, 2019 UT App 195, n.2, 455 P.3d
1071 (cleaned up).

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modify and the court’s order granting it, James applied for
over 800 jobs through numerous websites, including LinkedIn,
ZipRecruiter, SimplyHired, Glassdoor, Indeed, Ladders,
and CareerBuilder. James suffers from various disabilities related
to his time in the United States military. Due to these disabilities,
he experiences various health problems, the management of
which requires several medications. A letter from the United
States Department of Veterans Affairs (VA) states that James’s
disability rating is one hundred percent. 3 James also receives
$3,698.32 per month from a disability payment provided by
the VA.

¶5 Due to his conditions, James worked with the VA in a
vocational-rehabilitation program. As part of a feasibility study—
intended to place James in a job that would not aggravate his
disabilities—the VA placed James in a job at the Salt Lake City
Library working four-hour shifts three times a week at $11 per
hour. This led to the VA paying for James to pursue a master’s
degree in information systems, which eventually caused James to
leave the library position. However, due to his disabilities, James
struggled to keep up with his studies.

3. A VA disability rating is based on the severity of the service-
connected condition and represents how much a disability
decreases one’s overall health and ability to function. See 38 U.S.C.
§ 1155 (2018); 38 C.F.R. § 4.1 (2018) (explaining that the disability
rating involves an “evaluation of disability resulting from all
types of diseases and injuries encountered as a result of or
incident to military service” and that “[t]he percentage ratings
represent as far as can practicably be determined the average
impairment in earning capacity resulting from such diseases and
injuries and their residual conditions in civil occupations”); About
VA Disability Ratings, U.S. Dep’t of Veterans Affairs (February 7,
2020), https://www.va.gov/disability/about-disability-ratings/
[https://perma.cc/5LVV-NF6A].

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¶6 In October 2018, the district court issued its order granting
James’s petition to modify his child-support and alimony
obligations. The court concluded that James’s situation qualified
“as [a] substantial change in circumstances,” that “was
unforeseeable,” and that James was involuntarily unemployed.
Because of these conclusions and because both James’s and Tish’s
respective net monthly incomes left them in the financial red, the
court utilized the doctrine of equalization of income to reduce
James’s monthly child-support obligation to $796 and his alimony
obligation to $131.

¶7 Tish appeals.

ISSUE AND STANDARDS OF REVIEW

¶8 Tish raises two contentions on appeal that ultimately
amount to one broad issue: whether the district court properly
determined James’s income. First, Tish contends that “the court
failed to properly impute income to [James] for the child support
and alimony determination.” Then, Tish contends that it was
improper “to not consider any and all income including gifts
when determining alimony.”

¶9 “In divorce actions, a district court is permitted
considerable discretion in adjusting the financial and property
interests of the parties, and its actions are entitled to a
presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452
P.3d 1134 (cleaned up). Moreover, “a court’s decision to impute
income to a spouse, and its decision on the amount of income that
ought to be imputed are each reviewed for an abuse of
discretion.” Id. ¶ 98; see also Pulham v. Kirsling, 2019 UT 18, ¶ 41,
443 P.3d 1217. Finally, we “review a [district] court’s
determination to modify or not to modify a divorce decree for an
abuse of discretion. However, we review for correctness any
challenges to the legal adequacy of findings of fact or to the legal

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accuracy of the [district] court’s statements underlying such a
determination.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3
(cleaned up). 4

ANALYSIS

¶10 In determining alimony, a district court is required to
consider the enumerated factors in section 30-3-5(8)(a) of the Utah
Code. Similarly, a district court must look to the Utah Child
Support Act in determining child support. See Utah Code Ann.
§ 78B-12-205 (LexisNexis 2018). As part of these analyses, “courts
in divorce cases may consider imputing income to an
unemployed spouse in assessing the spouse’s ability to produce
income.” Petrzelka v. Goodwin, 2020 UT App 34, ¶ 10; see also Utah
Code Ann. § 78B-12-203(8)(b) (dictating that imputed income
“shall be based upon employment potential and probable
earnings considering” various enumerated factors). 5

¶11 “Although not required to impute income, a finding of
voluntary unemployment or underemployment may be relevant”
in the imputation analysis. Hartvigsen v. Hartvigsen, 2018 UT App
238, ¶ 16, 437 P.3d 1257 (cleaned up); see also Rayner v. Rayner, 2013
UT App 269, ¶ 10 n.4, 316 P.3d 455 (“While the current statute no
longer refers explicitly to a finding of voluntary unemployment
or underemployment, . . . [such a finding] remain[s] relevant.”

4. Tish does not dispute that James’s situation constitutes an
unforeseeable or substantial change in circumstances. See Utah
Code Ann. § 30-3-5(8)(i)(i) (LexisNexis 2018). Therefore, we do not
further address those issues.

5. “Although this section of the Utah Code addresses imputation
for the purposes of child support, it is also relevant to imputation
in the alimony context.” Hartvigsen v. Hartvigsen, 2018 UT App
238, ¶ 8 n.5, 437 P.3d 1257 (cleaned up).

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(cleaned up)). “A spouse is voluntarily unemployed or
underemployed when he or she intentionally chooses of his or her
own free will to become unemployed or underemployed.” Rayner,
2013 UT App 269, ¶ 7 (cleaned up). “A person who has been
involuntarily terminated from a position may thereafter become
voluntarily underemployed by not attempting in good faith to
obtain new employment . . . or by refusing to accept suitable
employment offers.” Busche v. Busche, 2012 UT App 16, ¶ 21, 272
P.3d 748 (cleaned up). In connection with this inquiry, we
examine “what the spouse has done in the aftermath of [the]
termination to determine whether he or she has become
voluntarily underemployed by virtue of his or her failure to then
make reasonable efforts to obtain employment at a pay rate
comparable to that of the lost employment.” Rayner, 2013 UT App
269, ¶ 8 (cleaned up). An imputation analysis also involves
consideration of the unemployed spouse’s employment capacity
and earning potential. Id. “Employment capacity involves
consideration of the spouse’s abilities and limitations,
qualifications, experience, and skills.” Id. (cleaned up).

¶12 However, income may not be imputed “in contested cases”
unless the district court “enters findings of fact as to the
evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-
203(8)(a). And “if the district court were to take the discretionary
step of imputing income, the imputation would have to be based
upon evidence related to employment potential and probable
earnings.” Pulham v. Kirsling, 2019 UT 18, ¶ 41, 443 P.3d 1217; see
also Busche, 2012 UT App 16, ¶ 22 (“At a minimum, the [district]
court must determine [an individual’s] employment capacity and
earnings potential before it can logically conclude that he is, in
fact, underemployed.” (cleaned up)).

¶13 Here, the district court exercised its discretion to decline to
impute James’s previous L-3 level of income to him; the court
based its decision on James’s disabilities and unsuccessful efforts
to obtain gainful employment. Tish argues that “the court did not

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evaluate [James’s] job skills, abilities, and current earnings,” and
Tish highlights facts favorable to her position such as the job offer
James received from Woodbury, his work at the Salt Lake City
Library, and his testimony that he studied for forty hours a week
in his attempt to obtain a master’s degree. But this argument
crumbles under the weight of careful scrutiny because the court,
in fact, analyzed those details.

¶14 To start, the court did evaluate James’s skills and abilities,
and it specifically concluded that imputation of his previous level
of income was not warranted:

6. [James] is currently involuntarily unemployed in
that since his firing, he has made every effort to
network, apply for jobs, interview for jobs, become
a better candidate for jobs, yet has failed to secure
any offers of employment.

....

9. Imputation to [James] of income beyond $3,698.32
is improper because [James] has made good-faith
efforts to secure remunerative employment since his
job was terminated and his ability to work based
upon his disabilities renders it impossible for him to
earn the income which he earned until he was fired.

¶15 In so concluding, the court noted James’s specific
disabilities and that James “has applied for more than [800] jobs,
and he has attended all interviews that he secured.” The court
relied on the VA’s letter rating James’s disabilities as one hundred
percent. The court also noted James’s master’s degree studies and
his vocational rehabilitation through the VA as not being bases to
impute the requested income to James. See infra ¶¶ 17–18. Thus,
the court considered both James’s abundant efforts to obtain a job

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and his lack of employment capacity due to his disabilities in
coming to its conclusion. See Rayner, 2013 UT App 269, ¶ 8.

¶16 In bringing up James’s job offer from Woodbury, Tish’s
argument fails to mention that James never ended up working in
that position because the job offer was contingent upon
Woodbury securing a contract it was in competition for and did
not receive. The argument also loses its persuasive value when we
consider the chronology of James’s occupational efforts.
Woodbury extended its job offer to James about a month after he
was fired from L-3 in the summer of 2016, which was two years
before the court granted James’s petition to modify. In the
meantime, James networked with former work colleagues,
applied for over 800 jobs, and did not receive a single job offer,
which the court characterized as his “good-faith efforts.” Thus,
the Woodbury job offer told the court very little about James’s
efforts and employment capacity when the additional evidence
was brought to light at the evidentiary hearing.

¶17 The district court was also well-aware of James’s work at
the library, which was part of a feasibility study with the VA, was
intended to place James in a job that would not aggravate his
disabilities, and led to the VA paying for his master’s degree
studies. Simply put, it was reasonable for the district court to view
the position at the library as an atypical employment arrangement
for vocational rehabilitation upon which there was an insufficient
basis to impute James’s previous level of income to him, given the
position’s temporary and rehabilitative qualities.

¶18 And Tish’s argument that James should be imputed the
income because he testified that he studied forty hours per week
neglects the other half of that scholastic story, namely the
difficulties James was having with his studies. The court noted
these difficulties, demonstrating that his studies were not a basis
to impute income:

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20. [James] has a processing disorder when reading
that requires him to receive an accommodation
software for school to be able to listen to his
textbooks.

21. [James] receives an accommodation at school to
have someone take notes for him because he cannot
maintain focus and concentration throughout his
classes.

22. [James] has several incompletes at school from
not being able to keep up with the assignment
schedule.

¶19 In short, Tish’s argument that the district court did not
evaluate James’s skills and abilities is unpersuasive because the
court did not ignore the facts that Tish highlights; rather, the court
determined that the evidence was persuasive in James’s favor
instead of Tish’s. See Nave-Free v. Free, 2019 UT App 83, ¶ 10, 444
P.3d 3 (explaining that “merely pointing to evidence that might
have supported findings more favorable” is unpersuasive and
that a party instead “must identify flaws in evidence relied on by
the [district] court” (cleaned up)).

¶20 In her final point related to imputation of income, Tish
argues that the district court should have imputed income to
James at “the federal minimum wage for a 40-hour work week.”
But this issue is unpreserved.

¶21 “Parties are required to raise and argue an issue in
the [district] court in such a way that the court has an opportunity
to rule on it.” State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443
(cleaned up). “When a party fails to raise and argue an issue in
the [district] court, it has failed to preserve the issue, and an
appellate court will not typically reach that issue absent a valid
exception to preservation.” Id. ¶ 15. “[O]ur case law draws a

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distinction between new ‘issues’ (like distinct claims or legal
theories) and new ‘arguments’ in support of preserved issues
(such as the citation of new legal authority).” Hand v. State, 2020
UT 8, ¶ 6. We have previously explained that not all issues related
to imputing income are preserved merely because the topic of
imputing income is in dispute. Vanderzon v. Vanderzon, 2017 UT
App 150, ¶¶ 37–38, 402 P.3d 219 (holding that whether the district
court “erred by imputing too much income” to a party was not
preserved because “[w]hile the court’s own findings and orders
indicate[d] that the court considered the components of an
alimony determination, they d[id] not demonstrate that the court
considered the particular” issues raised on appeal).

¶22 In this case, the record indicates that Tish proceeded with
an all-or-nothing approach at the district court level: she sought
solely that the court impute income to James at the level of his
previous income at L-3. She did not once, throughout the entire
course of the modification proceedings, raise or even tangentially
address a claim or theory that James should be imputed a
different level of income (e.g., minimum wage or the level of
income at his part-time library job). Even Tish’s proposed order
submitted to the court lacked any reference to imputing income
of minimum wage or anything lower than James’s previous salary
at L-3. 6 Therefore, Tish failed to preserve the theory she now
propounds on appeal: that the court erred by not imputing a
lower level of income to James. 7

6. To the extent that Tish argues for other levels of income to be
imputed, which is unclear from her briefs on appeal, those issues
are unpreserved for the same reasons.

7. We see no valid exception to the preservation rule here, nor
does Tish argue one. See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d
443.

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¶23 Next, Tish argues that “equalization of poverty was not
appropriate when there [was] money available to pay the alimony
obligation.” Her premises for this conclusion are that James’s
current wife has been “paying all his monthly obligations other
than alimony and child support[,] . . . there were no written
agreements between them that he would ever pay her back[, and
t]herefore, these were gifts and should be considered as part of his
gross income in being able to pay his alimony obligation.” But this
argument is unsound.

¶24 “Equalization of income, which is perhaps better described
as equalization of poverty, is a [district] court’s remedy for those
situations in which one party does not earn enough to cover his
or her demonstrated needs and the other party does not have the
ability to pay enough to cover those needs.” Keyes v. Keyes, 2015
UT App 114, ¶ 39, 351 P.3d 90 (cleaned up). 8 In setting alimony,
“[t]he court may consider the subsequent spouse’s financial
ability to share living expenses.” Utah Code Ann. § 30-3-
5(8)(i)(iii)(A) (LexisNexis 2018).

¶25 Here, the district court did take into account the financial
contributions of James’s current wife. It noted that James’s
“monthly expenses are listed at $5,446.43. This figure already
takes into account [James’s] new wife sharing in the household
expenses and she is not expected to pay all of [James’s] expenses.”

¶26 The court also noted that James and his current wife have
drained their savings accounts completely and have borrowed
from his wife’s retirement account in trying to meet James’s
obligations under the divorce decree. And there was testimony
that James had an agreement to pay his current wife back,

8. The district court noted the parties’ respective monthly income
shortfalls in invoking the doctrine. James’s expenses are $5,446.43,
and his income is $3,698.32. Tish’s expenses are $5,088.70 with a
monthly income of $2,407.

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providing the district court an evidentiary basis to conclude that
the money was not a gift. See Jones v. Cook, 223 P.2d 423, 425–26
(Utah 1950) (“A clear and unmistakable intention on the part of
the donor to make a gift of h[er] property is an essential requisite
of a gift inter vivos.” (cleaned up)). Even if this testimony didn’t
exist, the court could not base its prospective order on past gifts
that have no assurance of being continued because James’s
current wife has no legal obligation to continue providing the
monetary support that she has in the past. Therefore, Tish’s
argument that the district court erred in not concluding that the
financial contributions were endlessly perpetual gifts is
unavailing.

CONCLUSION

¶27 We conclude that the district court did not abuse its
discretion in determining James’s income and in granting his
petition to modify the divorce decree.

¶28 Affirmed.

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