2023 UT App 20

THE UTAH COURT OF APPEALS

AMY R. MYERS,

Appellee,

v.

JACOB W. MYERS,

Appellant.

Opinion

No. 20220002-CA

Filed March 2, 2023

Sixth District Court, Richfield Department

The Honorable Brody L. Keisel

No. 184600056

Benjamin L. Wilson, Attorney for Appellant

Douglas L. Neeley, Attorney for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and JOHN D. LUTHY

concurred.

HARRIS, Judge:

¶1 After more than two decades of marriage, Jacob and Amy 

Myers divorced in 2018, and mutually agreed to the terms of their 

divorce. In particular, they agreed that Jacob1 would pay Amy 

$916 per month in child support and $2,300 per month in alimony. 

Less than two years later, Jacob filed a petition to modify the 

divorce decree, asserting that both his and Amy’s income had 

changed since the divorce. The district court, after holding a trial, 

denied Jacob’s petition to modify, and Jacob appeals that denial, 

1. Because the parties have the same last name, we refer to them

by their first names for clarity, with no disrespect intended by the

apparent informality.
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asserting that the court erred in determining that Amy’s ability to 

earn had not changed and in failing to make findings regarding 

Amy’s reasonable expenses. We find merit in Jacob’s positions, 

and therefore reverse and remand. 

BACKGROUND

¶2 Jacob and Amy Myers married in 1995, but divorced in 

2018 after some twenty-three years of marriage. When they 

divorced, one of their children (born in 2001) was still a minor, but 

all their children are now adults. Throughout most of their 

marriage, Jacob worked in oil production as a rig manager. His 

position paid relatively well—at the time of the divorce, he was 

earning $8,233 per month—but required him to work a 

nontraditional schedule (two weeks on, two weeks off), and in 

addition the job was sometimes dangerous and often involved the 

operation of heavy machinery. 

¶3 While Jacob worked in the oil fields, the couple decided 

that Amy would—at least until the children were grown—forgo 

steady employment outside the home in order to care for the 

children. Amy did, however, run a small “foot zoning” business 

from which she earned approximately $250 per month. 

¶4 In April 2018, Amy filed for divorce, citing irreconcilable 

differences. Jacob did not contest Amy’s petition; instead, the 

parties—neither of which were, at the time, represented by 

counsel—filed a joint stipulation, using forms provided by the 

court’s self-help center, agreeing to resolve all matters related to 

the divorce petition. As amended, the stipulation provided that 

Jacob would pay Amy $916 per month in child support—at least 

for another year or two until the parties’ youngest child reached 

the age of majority—and $2,300 per month in alimony. Jacob’s 

obligation to pay alimony was to last twenty-three years—until 

April 2041—unless Amy remarried or cohabited before that. 
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¶5 In the stipulation, the parties agreed that Jacob’s income 

was $8,233 per month, and that Amy’s income was $250 per 

month, and those figures were apparently used to calculate 

Jacob’s child support obligation according to applicable 

guidelines. But the stipulation contained no indication of how 

Jacob’s alimony obligation was calculated; in particular, the 

stipulation was silent as to what Amy’s reasonable monthly 

expenses might be. 

¶6 Using court-approved forms, the parties incorporated the 

terms of their stipulation into proposed findings of fact and 

conclusions of law, as well as a proposed divorce decree, and the 

district court signed the documents, thus finalizing the parties’ 

divorce, in May 2018. The final documents, like the parties’

amended stipulation, provided that Jacob would pay $916 per 

month in child support and $2,300 per month in alimony, but 

contained no findings about Amy’s reasonable monthly expenses. 

¶7 About eighteen months later, in November 2019, Jacob—

now represented by an attorney—filed a petition to modify the 

alimony award contained in the decree. In the petition, Jacob 

alleged that “the income of both parties has significantly changed 

since their divorce was finalized.” With regard to his own income, 

Jacob alleged that he was “no longer working in the oil fields” 

because he was “no longer able to work the same work schedule 

and the same type of work because of how it was negatively 

affecting him.” He asserted that he was “going back to school” in 

an effort to begin a different career, and that he was “currently not 

working.” With regard to Amy’s income, Jacob alleged that Amy 

had become employed and earned $1,200 per month, and that her 

“self-employment income” had increased to $1,500 per month, 

such that Amy’s total monthly income was $2,700. Jacob alleged 

that the changes in the parties’ respective incomes constituted a 

“substantial change in circumstances that warrants a 

modification” of the alimony award. 
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¶8 Just a few weeks later, in January 2020, Amy—also now

represented by an attorney—filed a motion for an order to show 

cause, asserting (among other things) that Jacob had failed to fully 

comply with his child support and alimony obligations. The court 

issued an order commanding Jacob to appear and show cause 

why he should not be held in contempt of court, and later held an 

evidentiary hearing to consider the matter. At that hearing, the 

court found that Jacob had “voluntarily quit his employment” in 

the oil fields and that, “if he hadn’t, he would have been able to 

pay what was ordered.” The court thus found Jacob in contempt

and ordered him to pay Amy more than $22,000 in back child 

support and nearly $6,000 in unpaid alimony.

¶9 In the meantime, Jacob’s petition to modify remained 

pending, and the parties exchanged updated financial 

declarations in anticipation of an eventual trial. Amy’s first 

updated financial declaration, signed in December 2019, listed 

total annual income of nearly $11,000 (or about $889 per month) 

from three different sources: a new job, her foot zoning business,

and teaching yoga classes. In this same declaration, Amy set forth 

monthly expenses of $4,084, with some of the expenses being at 

least partially attributable to her youngest child, who was still 

living in the home with Amy at that point. Then in August 2021, 

on the day of trial, Amy submitted a second updated financial 

declaration. According to this new declaration, Amy had recently 

obtained a different job, this one full-time, that paid her $45,000 

per year ($3,750 per month). In addition, Amy stated that she 

earned $241 per month from her foot zoning business and $22 per 

week teaching yoga. She also asserted that her monthly expenses 

had increased to $4,795 (although the line-items listed in the 

declaration add to only $4,613), even though no children were 

living with her any longer. Among the changes from the 2019 

declaration were a $500 increase in healthcare expenses, a $175 

increase in real estate maintenance, a $100 increase in 

entertainment expenses, and an $88 increase in utilities.
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¶10 In August 2021, the district court held a one-day bench trial 

to consider Jacob’s petition to modify. The only two witnesses to 

testify were Jacob and Amy. During his testimony, Jacob 

explained that he voluntarily left his position in the oil fields

because he was no longer able to focus on his job duties to the 

degree he wanted, and he was worried that—due to the 

dangerous nature of the work—he would injure himself or 

someone else. However, he acknowledged, on cross-examination, 

that he was still physically able to perform the duties of the job; 

that his employer had not asked him to leave; that he had not 

received mental health counseling to address his concerns about 

the stress of his work; that he could have taken a leave of absence 

to address those issues and “gone back to” his job after that; and 

that if he had done so, he would still “be able to . . . pay the $2,300 

a month in alimony.” He testified that, as of the time of trial, he 

was working at a home improvement warehouse earning $14 per 

hour, or $2,426 each month. 

¶11 During her testimony, Amy testified that she had recently 

obtained full-time employment with the local chamber of 

commerce, in which she earned a salary of $3,750 per month. In 

response to direct questioning about this job, Amy conceded that 

she has “the ability to earn at least $3,750 a month,” and that she 

would be able to “do that moving forward.” In addition, she 

acknowledged that she earned additional income from her foot

zoning business and her work as a yoga instructor. Amy testified 

that she earned some $100 per month from teaching yoga. With 

regard to her foot zoning business, she testified that she averaged

ten treatments per month and charges $50 per treatment, and 

therefore earns $500 per month in revenue. But she testified that 

she must pay certain expenses associated with the business that 

eat up most of the revenue, resulting in her making only some $90 

per year (or $7.50 per month) in profit. On cross-examination, she 

acknowledged that her total gross income from all sources, before 

expenses, was approximately $4,350 per month. 
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¶12 Amy testified that she was still living in the same house 

that the couple had been living in during the marriage, but that 

now—at the time of trial—she was living there alone because her 

children were grown and gone. With regard to expenses, she 

testified that her total monthly expenses were $4,084 in 2019 but 

had increased to $4,795 at the time of trial, despite the fact that, by 

the time of trial, she was living alone. She explained that new 

health insurance and home maintenance costs were largely 

responsible for the increase. But then, in response to a direct 

question about how her expenses at the time of the 2018 divorce 

compared to her expenses at the time of the 2021 modification 

trial, she testified that her expenses had “stayed the same.” 

¶13 After trial, the parties (through counsel) submitted written 

closing arguments. Amy argued that, for purposes of the alimony 

computation, the court should impute to Jacob the same income

he had made in the oil fields, find there to be no material and 

substantial change in circumstances, and on that basis dismiss the 

petition to modify. For his part, Jacob argued that the court should 

modify (or even terminate) his alimony obligation because Amy 

was now employed full-time and had the ability to provide for 

her own needs. In particular, Jacob argued that Amy’s reasonable 

expenses were in actuality less than the amounts reflected on her 

recent financial declaration and in her testimony, and that her 

increased income was sufficient to meet those needs.

¶14 A few weeks later, the district court issued a written ruling 

denying Jacob’s petition to modify. In its ruling, the court found

that Jacob had voluntarily quit his job in the oil fields, and that his 

monthly income had decreased from $8,233 to $2,427. The court 

also found that Amy “currently works” for the local chamber of 

commerce “earning $45,000 annually,” and that Amy “also has 

side businesses doing foot treatments and teaching yoga.” But the 

court made no specific finding regarding Amy’s total income. 
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¶15 Building on these findings, the court concluded that Jacob’s 

change in income constituted “a substantial material change in 

circumstances that was not expressly stated in the decree.” The 

court did not separately analyze whether the change in Amy’s

income also constituted such a change in circumstances. 

¶16 Having concluded that there existed a substantial material 

change in circumstances, the court proceeded to “consider 

whether modification [of the alimony award] is appropriate.” The 

court began its analysis by examining Jacob’s income situation, 

and concluded that, because Jacob had left his job voluntarily and 

had not sustained any loss in earning capacity, Jacob “remains 

able to earn income at the level he was earning at the oil fields.” 

Accordingly, the court imputed to Jacob an income of $8,233 per 

month for purposes of the alimony calculation. 

¶17 With regard to Amy’s expenses, the court found that her 

“financial needs . . . [have] not changed since” 2018, when “the 

stipulated decree was entered,” but made no specific finding as to 

the exact amount of those expenses. 

¶18 And with respect to Amy’s earning capacity, the court 

offered its view that the “determinative factor[]” was not Amy’s 

income but, instead, her “ability to provide” for herself. On that 

score, the court found that “[n]o evidence was presented that 

[Amy] has obtained extra education or has otherwise increased 

her ability to earn since the time of the divorce,” and therefore 

concluded that—despite her increased income—her earning 

capacity had not changed. In so ruling, the court observed that it 

was Jacob’s “unilateral decision” to leave his job that compelled 

Amy to “obtain employment to provide for herself,” and stated 

that reducing Jacob’s alimony obligation where the precipitating 

event “was [Jacob’s] decision to leave his employment would set 

a precedent allowing parties who have stipulated to pay alimony 

to renege on that stipulation by taking a much lower paying job 
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20220002-CA 8 2023 UT App 20

and forcing receiving parties to find additional employment by 

stopping alimony payments.”2

ISSUE AND STANDARDS OF REVIEW

¶19 Jacob now appeals the court’s denial of his petition to 

modify. In this context, “we review the district court’s underlying 

findings of fact, if any, for clear error,” Peeples v. Peeples, 2019 UT 

App 207, ¶ 11, 456 P.3d 1159, and we review its determination 

regarding the presence or absence of a substantial change of 

circumstances, as well as its ultimate determination regarding the

petition to modify, for an abuse of discretion, see id.; see also

Armendariz v. Armendariz, 2018 UT App 175, ¶ 6, 436 P.3d 294. The 

district court’s choice of, and application of, the appropriate legal 

standard, however, “presents an issue of law that we review for 

correctness.” Peeples, 2019 UT App 207, ¶ 11. 

2. Amy does not argue that we should affirm the denial of Jacob’s 

petition to modify on the basis that the original award was 

derived from a stipulation, and therefore the district court’s 

comments about holding Jacob to his stipulation are not directly 

before this court. But we note, for clarity, that even stipulated 

alimony awards are subject to modification. See, e.g., Diener v. 

Diener, 2004 UT App 314, ¶ 5, 98 P.3d 1178 (noting that, while a 

court “is certainly empowered to consider the circumstances 

surrounding an existing stipulation when considering a petition 

to modify . . . , the law was intended to give the courts power to 

disregard the stipulations or agreements of the parties . . . and 

enter judgment for such alimony . . . as appears reasonable, and 

to thereafter modify such judgments when change of 

circumstances justifies it, regardless of attempts of the parties to 

control the matter by contract” (quotation simplified)); accord Sill 

v. Sill, 2007 UT App 173, ¶¶ 12–18, 164 P.3d 415. 
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ANALYSIS

¶20 We begin our analysis with a general discussion of 

petitions to modify alimony awards and the process courts are to 

follow when adjudicating such petitions. We then address Jacob’s 

claim that the court failed to follow the correct process in this case. 

I

¶21 After a district court has made an award of alimony, the

court “retains continuing jurisdiction to” modify that award 

“when it finds that there has been a substantial material change in 

circumstances.” See Nicholson v. Nicholson, 2017 UT App 155, ¶ 7, 

405 P.3d 749 (quotation simplified); see also Utah Code § 30-3-

5(8)(i)(i) (2019).3 If the court determines that no substantial 

3. At the time Jacob filed his petition to modify, the relevant 

statute authorized modification of alimony awards when the 

movant could demonstrate that there had been “a substantial 

material change in circumstances not foreseeable at the time of the 

divorce.” Utah Code § 30-3-5(8)(i)(i) (2019) (emphasis added). In 

2021, prior to the trial on Jacob’s petition to modify, our legislature 

amended that statutory provision; under current law, 

modification is authorized upon a showing that there has been “a 

substantial material change in circumstances not expressly stated in 

the divorce decree or in the findings that the court entered at the time of 

the divorce decree.” Id. § 30-3-5(11)(a) (2022) (emphasis added). In 

this appeal, the parties have not briefed the question of which 

version of the statute applies to Jacob’s petition to modify, nor has 

either side suggested that the outcome of this case turns on these 

differences in statutory text. Operating on the assumption that 

Jacob is entitled to application of the version of the statute in effect 

when he filed his petition, see State v. Clark, 2011 UT 23, ¶ 13, 251 

P.3d 829 (stating that “we apply the law as it exists at the time of 

the event regulated by the law in question,” and that when that 

(continued...)
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20220002-CA 10 2023 UT App 20

material change in circumstances has occurred, then the court’s 

analysis ends, and the petition to modify the alimony award is 

properly denied. See Moon v. Moon, 1999 UT App 12, ¶ 27, 973 P.2d 

431 (“As a threshold issue, before modifying an alimony award, 

the court must find a substantial material change in circumstances

. . . .” (quotation simplified)); see also Peeples v. Peeples, 2019 UT 

App 207, ¶ 32, 456 P.3d 1159 (affirming a district court’s denial of 

a petition to modify on the ground that there existed no 

substantial material change in circumstances). 

¶22 If, however, the court finds that a substantial material 

change in circumstances has occurred, the court must conduct a 

complete analysis regarding whether the alimony award remains 

appropriate. See Nicholson, 2017 UT App 155, ¶ 7 (stating that, 

once a finding of changed circumstances “has been made, the 

court must then consider” the alimony factors (emphasis added) 

(quotation simplified)); accord Moon, 1999 UT App 12, ¶ 29. This 

analysis should include examination of the statutory alimony 

factors, see Utah Code § 30-3-5(8)(a) (2019), including the factors 

commonly referred to as “the Jones factors,” see Jones v. Jones, 700 

P.2d 1072, 1075 (Utah 1985); see also Nicholson, 2017 UT App 155, 

¶ 7 (stating that, after finding that circumstances have changed, 

“the court must then consider at least the following factors in 

determining a new alimony award: (i) the financial condition and 

needs of the recipient spouse; (ii) the recipient’s earning capacity 

or ability to produce income; (iii) the ability of the payor spouse 

to provide support; and (iv) the length of the marriage” (quotation 

simplified)). “These factors apply not only to an initial award of 

alimony, but also to a redetermination of alimony during a 

event is a motion, “we apply the law as it exists at the time the 

motion is filed”), we apply the 2019 version of the statute in this 

appeal, but follow the parties’ lead in presuming this application 

to have no effect on the outcome of the case. 
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modification proceeding.” Williamson v. Williamson, 1999 UT App 

219, ¶ 8, 983 P.2d 1103.

¶23 “Consideration of these factors is critical to achieving the 

purposes of alimony,” Paulsen v. Paulsen, 2018 UT App 22, ¶ 14, 

414 P.3d 1023, which are “(1) to get the parties as close as possible 

to the same standard of living that existed during the marriage; 

(2) to equalize the standards of living of each party; and (3) to 

prevent the recipient spouse from becoming a public charge,” 

Miner v. Miner, 2021 UT App 77, ¶ 14, 496 P.3d 242 (quotation 

simplified). “The core function of alimony is therefore economic—

it should not operate as a penalty against the payor nor a reward 

to the recipient.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 

P.3d 378. 

¶24 “Regardless of the payor spouse’s ability to pay more, the 

recipient spouse’s demonstrated need must constitute the 

maximum permissible alimony award.” Id. (quotation 

simplified); see also Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 

P.3d 994 (“An alimony award in excess of the recipient’s need is a 

basis for remand . . . .”). Because a recipient spouse’s 

demonstrated need constitutes an effective “ceiling” on an 

alimony award, see Fox v. Fox, 2022 UT App 88, ¶ 19, 515 P.3d 481,

courts often begin their analysis by assessing whether recipient 

spouses are able to meet their reasonable needs through their own 

income. See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 

P.3d 219 (stating that, in determining alimony, courts will 

generally “first assess the needs of the parties, in light of their 

marital standard of living” (quotation simplified)). If the recipient 

spouse is able to meet his or her own needs, then the analysis 

ends, and no award should be made, but if “the recipient spouse 

is not able to meet [his or] her own needs, then [the court] should 

assess whether the payor spouse’s income, after meeting his [or 

her] needs, is sufficient to make up some or all of the shortfall 

between the recipient spouse’s needs and income.” See id.

(quotation simplified). 
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¶25 When considering the relevant alimony factors, courts are 

“required to make adequate factual findings on all material issues, 

unless the facts in the record are clear, uncontroverted, and 

capable of supporting only a finding in favor of the judgment.” 

Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 9, 80 P.3d 153 

(quotation simplified). When a district court fails to enter specific 

findings regarding “the needs and condition of the recipient 

spouse, making effective review of the alimony award impossible, 

that omission is an abuse of discretion.” Id. ¶ 10.

II

¶26 With these principles in mind, we turn our attention to 

Jacob’s assertion that the court failed to follow the correct process 

in adjudicating his petition to modify. In particular, Jacob asserts 

that the court—once it determined that there had been a 

substantial material change in circumstances—was required to 

conduct a complete analysis of all the alimony factors, and that it 

failed to properly do so.4 We find merit in Jacob’s argument. 

4. Amy characterizes Jacob’s appellate claims as assertions that 

the district court’s findings were inadequate, and argues based on 

this characterization that Jacob—by not asking the court to make 

more detailed findings—failed to preserve his claims for appellate 

review. See In re K.F., 2009 UT 4, ¶ 60, 201 P.3d 985 (stating that a 

party “waives any argument regarding whether the district 

court’s findings of fact were sufficiently detailed when the [party] 

fails to challenge the detail, or adequacy, of the findings with the 

district court” (quotation simplified)). While we acknowledge—

as discussed herein—that the court did not make findings on 

several of the alimony factors, that was due to the court’s error 

(discussed herein) regarding Amy’s earning capacity, and its 

concomitant failure to complete the proper legal analysis. Thus, 

we disagree with Amy’s characterization of Jacob’s claims on 

(continued...)
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¶27 The district court started its analysis in the proper place, 

and assessed whether Jacob had demonstrated that there had 

been a substantial material change in circumstances that would 

justify reopening the alimony inquiry. Looking just at the change 

in Jacob’s own income, the court made a finding that there had 

been a “substantial change in circumstances.” And neither party 

takes issue with this finding on appeal; both appear to 

acknowledge the correctness of the court’s initial determination 

that circumstances affecting these parties had changed enough to 

justify a second look at the alimony situation.5

¶28 From there, though, the court’s analysis strayed from the 

proper path. After determining that the change in Jacob’s income 

constituted a substantial material change in circumstances, the 

court did not conduct a full analysis of the relevant alimony 

factors. With regard to Amy’s needs, the court’s analysis, in full, 

was simply this: “[Amy] testified that her monthly expenses have 

not increased from the time the parties were divorced in May 2018 

until the time of trial in August of 2021.” The court made no 

appeal, and note that Jacob certainly preserved for our review the 

general question of whether the district court applied the correct 

legal analysis to his petition to modify, as well as the more specific 

question of whether Amy can meet her needs through her own 

income. Thus, we reject Amy’s assertion that Jacob’s contentions 

on appeal were not properly preserved for our review. 

5. We note that the court made this determination by looking 

solely at the change in Jacob’s income. Arguably, the change in 

Amy’s income would constitute a second basis for a 

determination that circumstances had changed significantly 

enough to revisit the appropriateness of the alimony award. 

Ultimately, however, it does not matter, for purposes of this 

appeal, which change the district court relied on to determine that 

a substantial material change had taken place. 
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finding that Amy’s testimony on that point was credible, see Rehn 

v. Rehn, 1999 UT App 41, ¶ 7, 974 P.2d 306 (“A trial court may not 

merely restate the recipient spouse’s testimony regarding her 

monthly expenses.” (quotation simplified)), and did not make any 

effort to assess what Amy’s reasonable monthly needs actually 

were; the court’s comparison to the 2018 divorce decree is 

especially unhelpful, in context, because that decree contained no 

specific determination regarding Amy’s expenses. 

¶29 With regard to the parties’ earning capacity, the court 

acknowledged that Amy had obtained a full-time job that paid her 

$3,750 each month, and that Amy “earns additional income from 

a foot zoning business and teaching yoga.” But the court made no 

finding as to what Amy’s total income actually was, stating that 

“[n]o evidence was presented that [Amy] has obtained extra 

education or has otherwise increased her ability to earn since the 

time of the divorce, only that her actual income has increased.” 

¶30 And with regard to Jacob, the court found that he had 

voluntarily left his job in the oil fields, and that he “remains able 

to earn income at the level he was earning” before. On that basis, 

the court imputed to Jacob income of $8,233 per month, despite 

the fact that Jacob was no longer earning that amount. Jacob takes 

no issue with this imputation determination on appeal. 

¶31 The court then completed its analysis by stating as follows: 

“[Amy’s] financial needs and both parties’ ability to earn has not 

changed since the time the stipulated decree was entered. 

Therefore, [Jacob’s] Petition to Modify the alimony ordered in the 

decree is DENIED.” 

¶32 In our view, the court was, at least to some extent, 

conflating the “changed circumstances” part of the analysis with 

the “Jones factors” part of the analysis. Its first mistake was failing 

to make a specific finding regarding Amy’s reasonable monthly 

needs. As noted, no such finding had been made in connection 
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with the 2018 decree, and Amy had submitted two conflicting 

financial declarations since then. In order to complete the multifactor alimony analysis mandated by the court’s unchallenged 

conclusion that circumstances had materially changed, the court 

needed to make an actual finding regarding Amy’s expenses.6

¶33 The next error the court made was in determining that 

Amy’s earning capacity had not changed, even though her income 

had. And here, it is important to differentiate between situations 

in which a spouse’s income goes down from situations in which a 

spouse’s income goes up. Certainly, where a spouse’s income goes 

down, it does not necessarily follow—indeed, it often does not 

follow—that the spouse’s earning capacity has also gone down; in 

such situations, courts retain the discretion to determine that, 

even though a spouse’s income has gone down, his or her earning 

capacity has not been diminished, and to impute to the spouse—

for instance, on the basis of a finding of voluntary 

underemployment—an income in line with the unchanged 

earning capacity. See, e.g., Olson v. Olson, 704 P.2d 564, 566 (Utah 

1985) (stating that where parties “experience[] a temporary 

decrease in income, [their] historical earnings must be taken into 

account in determining the amount of alimony to be paid”); 

6. Amy argues that the “facts concerning [her] financial needs and 

conditions are clear from the record,” and on that basis urges us 

to excuse the court’s failure to make a specific finding. We 

disagree with the premise of Amy’s argument. At trial, Amy 

testified that her expenses had stayed the same since May 2018, 

but there was no 2018 figure to which Amy’s testimony could be 

compared. Moreover, after 2018, Amy submitted two conflicting 

financial declarations and, at trial, Jacob’s attorney established 

that Amy was then living alone rather than with one or more of 

the parties’ children. We therefore agree with Jacob that the 

evidence in the record regarding Amy’s expenses was sufficiently 

conflicting as to be significantly less than “clear.” 
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20220002-CA 16 2023 UT App 20

Pankhurst v. Pankhurst, 2022 UT App 36, ¶¶ 14–15, 508 P.3d 612 

(noting that “a finding of voluntary underemployment is not a 

prerequisite to imputing income,” and affirming a trial court’s 

determination to assess the payor spouse’s income at a higher 

level than his current income because the current lower income 

was “temporary” (quotation simplified)); Gerwe v. Gerwe, 2018 UT 

App 75, ¶ 31, 424 P.3d 1113 (crediting a trial court’s skepticism 

about a payor spouse’s sudden drop in income where the spouse 

“came into trial making a huge amount of money . . . and then all 

of a sudden is making no money because, you know, now it’s time 

to pay somebody” (quotation simplified)). Indeed, the district 

court made precisely such a finding with regard to Jacob, and no 

party takes issue with that finding here on appeal. 

¶34 But the fact that a spouse’s income has gone up is very 

strong evidence that the spouse’s earning capacity has also risen. 

A party who is actually earning $45,000 per year will nearly 

always properly be deemed to have the capacity to earn at least 

that amount. There are, of course, exceptions: in some isolated 

instances, an increase in income is temporary and does not reflect 

an overall or long-term increase in earning capacity. See English v. 

English, 565 P.2d 409, 412 (Utah 1977) (stating that, when parties

“experience[] unusual prosperity during one year,” that unusual 

income figure is not necessarily indicative of earning capacity); see 

also, e.g., Woskob v. Woskob, 2004 PA Super 37, ¶ 28, 843 A.2d 1247

(holding that a spouse’s earning capacity, moving forward, was 

not reflected by three “retroactive salary bonuses” that were not 

likely to occur in the future, and stating that, since the spouse’s

“elevated salary during [the] period [in which he received those 

bonuses] is totally disproportionate to his actual earning capacity, 

his support obligation should reflect his earning capacity rather 

than his actual earnings”). But before concluding that a spouse’s 

earning capacity is less than the spouse’s actual income, a court 

should have evidence that the spouse’s higher income is truly 

ephemeral and not indicative of long-term earning capacity. 
Myers v. Myers

20220002-CA 17 2023 UT App 20

¶35 No such evidence is present here. Amy has obtained a fulltime salaried position that pays her a steady income of $45,000 per 

year. There is no indication that this job is only temporarily 

available to her. The evidence was undisputed that Amy’s earning 

capacity, moving forward, has increased, as exemplified by her 

new job; indeed, she testified that she has “the ability to earn at 

least $3,750 a month” at that job, and that she would be able to 

“do that moving forward.” The district court’s observation that 

Amy had not “obtained extra education” in an effort to grow her 

earning capacity is true as far as it goes. But even in the absence 

of any extra education or training, a spouse’s earning capacity can 

rise, and a spouse’s ability to obtain and maintain a salaried job is 

an extremely strong piece of evidence so indicating. 

¶36 We certainly take the court’s point that the reason Amy felt 

compelled to find additional employment was because Jacob 

made the decision to quit his job and pay her less in alimony. In 

the court’s view, Jacob’s decision “forc[ed]” Amy “to find 

additional employment.” We take no issue with the court’s 

observation that the law should not incentivize payor spouses to 

become voluntarily underemployed. But we do not think the law 

contains any such incentive; indeed, the customary (and 

presumably adequate) remedy for such behavior is for the court—

where appropriate, and as the court did here—to find the payor 

spouse underemployed and impute to that spouse an income 

commensurate with the previous salary.7

7. Moreover, we do not think it inappropriate, in the abstract, for 

payee spouses to make an effort to enter the workforce, and 

thereby pursue a higher standard of living and a greater degree 

of independence from the payor spouse. We recognize that many

spouses who have long been out of the workforce may find it 

difficult to reenter it, with or without additional education or 

training; generally speaking, our law does not require payee 

(continued...)
Myers v. Myers

20220002-CA 18 2023 UT App 20

¶37 Thus, we conclude that the district court erred in its 

analysis of Amy’s earning capacity. It erroneously determined 

that Amy’s earning capacity had not changed. And based on this 

determination, it stopped short of making a specific finding as to 

what Amy’s new earning capacity was, taking into account her 

new full-time job and, if appropriate, her part-time side 

endeavors. See Degao Xu v. Hongguang Zhao, 2018 UT App 189, 

¶ 31, 437 P.3d 411 (“When determining an alimony award, it is 

appropriate and necessary for a trial court to consider all sources 

of income that were used by the parties during their marriage to 

meet their self-defined needs, including income from a second 

job.” (quotation simplified)). The court should remedy these 

errors on remand, and should complete the calculation regarding 

Amy’s expenses and earning capacity, thus answering the 

question Jacob raises, namely, whether Amy has the ability to take 

care of her own needs through her own income. 

¶38 Finally, the court’s analysis regarding Jacob’s ability to 

provide support was also incomplete, and will require additional 

analysis in the event the court concludes that Amy is not 

completely able to pay for all of her reasonable monthly needs. 

See Vanderzon v. Vanderzon, 2017 UT App 150, ¶ 42, 402 P.3d 219

(“[I]f the court finds that the recipient spouse is not able to meet 

her own needs, then it should assess whether the payor spouse’s 

income, after meeting his needs, is sufficient to make up some or 

all of the shortfall between the recipient spouse’s needs and 

spouses in that situation to attempt to reenter the workforce in 

ways incongruous with their employment history. But a spouse 

who, whether by chance or perseverance, manages to gain a 

foothold in the workforce after a long absence may very well 

benefit from the experience; as we see it, our law should 

encourage self-sustainability and independence. Accordingly, we 

do not necessarily view—as the district court seemed to—the 

outcome of Amy’s employment journey to be an unfortunate one. 
Myers v. Myers

20220002-CA 19 2023 UT App 20

income.” (quotation simplified)). As already noted, the court 

imputed to Jacob a monthly income of $8,233, based on a finding 

of voluntary underemployment, and that determination is not 

challenged on appeal. But in order to compute Jacob’s ability to 

provide support to Amy to cover any determined shortfall, the 

court will need to compute Jacob’s reasonable monthly expenses,

see Rehn, 1999 UT App 41, ¶ 10 (“To be sufficient, the findings 

should also address the obligor’s needs and expenditures, such as 

housing, payment of debts, and other living expenses.” (quotation 

simplified)), which the court did not endeavor to do in its order.

¶39 As to whether a shortfall exists, the parties take divergent 

positions on appeal. Jacob asserts that no shortfall exists, and that 

Amy is able to pay all of her own reasonable monthly expenses. 

Amy, for her part, contends that even with her newly increased 

income she still has “a shortfall of over $1,800.” But Jacob’s 

alimony obligation ($2,300) apparently exceeds even Amy’s 

current calculation of her shortfall; under Amy’s computation of 

expenses, then, Jacob would still be entitled to at least some 

modification of his alimony obligation. On remand, the district 

court should run this complete calculation, making specific 

findings on each of the relevant factors, and should determine the 

extent to which Jacob’s alimony obligation should be modified. 

CONCLUSION

¶40 The district court did not apply the proper legal analysis to 

Jacob’s petition to modify, and erred when it concluded that 

Amy’s earning capacity had not changed. We reverse the court’s 

denial of Jacob’s petition to modify, and remand this case for 

further proceedings consistent with this opinion.