Does termination for cause constitute voluntary underemployment in Utah support cases? Busche v. Busche Explained

In Busche v. Busche, the Utah Court of Appeals addressed a critical question in family law: whether being terminated for cause automatically constitutes voluntary underemployment for purposes of income imputation in support modification cases. The court’s analysis provides important guidance for practitioners handling support modification petitions.

Background and Facts

Matthias and Lori Ann Busche divorced in January 2005, with Matthias ordered to pay $1,766 monthly in child support and $1,545 monthly in alimony based on his $7,067 monthly salary. Shortly after the divorce, Matthias was terminated from his position at Tahitian Noni following written warnings about his workplace behavior. After a period of contract work and unemployment, he found new employment at $4,583.33 monthly—a 35% reduction from his previous salary.

Key Legal Issues

The primary issue was whether the district court properly found Matthias voluntarily underemployed based solely on his termination for cause. The court also addressed whether this finding could serve as grounds for denying his petition for support modification and the propriety of the attorney fees award.

Court’s Analysis and Holding

The Court of Appeals reversed, holding that termination for cause does not automatically constitute voluntary underemployment. The court emphasized that “voluntarily” means “intentionally; without coercion,” and that a petitioner who is involuntarily terminated “does not deliberately choose to lose the job and therefore cannot be considered voluntarily unemployed or underemployed simply because the termination was for cause.”

The court distinguished between the substantial change in circumstances analysis and the imputation analysis, noting that the trial court improperly conflated these separate inquiries. The 35% income reduction clearly constituted a substantial change warranting consideration of modification. The proper inquiry then becomes whether the petitioner’s post-termination conduct demonstrates voluntary underemployment.

Practice Implications

This decision clarifies that practitioners must examine the Hall factors—including the party’s abilities, prevailing market wages, and available job opportunities—when determining voluntary underemployment. Courts should focus on whether the obligor made reasonable post-termination efforts to obtain comparable employment rather than simply whether the job loss was “for cause.” The decision also reinforces the importance of distinguishing between different types of attorney fees in modification proceedings, with different standards applying to enforcement fees versus fees for establishing new orders.