Jensen v. Jensen, 2007 UT App 377

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Coverage

Facts

Original Decree and Alimony Award

• The original alimony award to Wife was $2,150 per month, plus one-half of the net proceeds from rental income generated by a farm that was awarded to Husband in the property settlement.
• In 1997, the trial court originally found that Wife was unable to work.
• As part of the property settlement, Husband and Wife were each awarded one-half of a retirement account.

Husband’s Retirement and Petition to Modify

• Husband subsequently retired, and his only income is now derived from his half of the retirement account awarded to him in the original decree.
• Husband sought elimination of alimony, arguing that alimony could now be paid only from his separate property and that requiring payment effectively gave Wife an additional share of a retirement account she had already been awarded one-half of.
• The trial court issued a Memorandum Decision and Order reducing Wife’s alimony from $2,150 to $1,500 per month rather than eliminating it.

Wife’s Stay at the Andrews Residence

• Wife lived off and on for approximately two months in the same residence as Robert Andrews, during which she shared a bedroom with Mr. Andrews’s sister.
• There was no evidence that Wife shared living or food expenses with Mr. Andrews, had open access to the Andrews home, or that she and Mr. Andrews lived as though they were husband and wife.
• Wife did not have a key to the Andrews home and had only some of her clothing and toiletries with her during the stay.
• Wife maintained her own home in Brigham City, Utah, and returned to it repeatedly during the two-month period.

Wife’s Health and Financial Condition

• Based on Wife’s unrebutted testimony, the trial court found that she is in worse physical health than in 1997, when the court originally found her unable to work.
• The court’s findings catalogued numerous symptoms, including short- and long-term memory loss, personality change, fibromyalgia, headaches and migraines, circulation problems, anxiety, joint and nerve problems, respiratory and bowel problems, muscle stiffness causing falls, and insomnia.
• Husband offered no evidence to refute Wife’s testimony regarding her health or her inability to work.
• The trial court found that Wife’s needs far exceed her income of $676 per month and that she is unable to work.

Husband’s Financial Condition

• The trial court found that Husband’s income exceeds his needs by more than $1,000 per month, without even considering his ability to draw from his IRA account, other savings, and resources from the sale of property.

Issues of the Case

• Alimony — Cohabitation

  1. Alimony Termination / Cohabitation (Common Residency)

  Claim on Appeal: Husband argued that the trial court erred by not finding that Wife had cohabited with Robert Andrews, which would have supported termination of alimony.

  Holding: — Affirmed. Wife’s intermittent two-month stay in the Andrews home, without shared expenses, a key, open access, or abandonment of her own residence, did not satisfy the common-residency element of cohabitation.

  Statutory Authority: None cited in the opinion. The court resolved the issue under the case-law definition of cohabitation.

  Standard of Review:

  • Clearly erroneous — the trial court’s underlying factual findings regarding the living arrangement.
  • Correctness — the trial court’s ultimate conclusion as to whether the facts constitute cohabitation (a mixed question of fact and law).

  Controlling Cases:

  • Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996) (cohabitation is a mixed question of fact and law; defines common residency)
  • Haddow v. Haddow, 707 P.2d 669 (Utah 1985) (common residency requires a shared principal domicile implying continuity, not a visit or sojourn; no cohabitation on similar facts)
  • Sigg v. Sigg, 905 P.2d 908 (Utah Ct. App. 1995) (cohabitation requires residing with and engaging in sexual contact with a person of the opposite sex; identifies indicia such as shared expenses and living as husband and wife)

  Why It Matters: The opinion confirms that the payor bears the burden of proving both elements of cohabitation and that failure on common residency is dispositive, so the court need not reach sexual contact. The factors the court emphasized — a key, open access, shared expenses, relocation of belongings, and maintenance of a separate home — supply a practical evidentiary checklist. Temporary or intermittent stays, even of several weeks, will not suffice absent evidence of a shared principal domicile.

• Alimony — Modification

  2. Alimony Modification / Recipient’s Inability to Work and Burden of Proof

  Claim on Appeal: Husband argued that the trial court erred by failing to require Wife to prove her inability to work.

  Holding: — Affirmed. As the party seeking modification, Husband bore the burden of proving a substantial change in circumstances, and he offered no evidence to rebut Wife’s testimony that her health had worsened since the 1997 finding that she could not work.

  Statutory Authority: None cited in the opinion. The court applied the judicially developed Jones factors.

  Standard of Review:

  • Abuse of discretion (clear abuse of discretion) — the trial court’s alimony modification and its findings regarding the recipient spouse’s condition, which will not be disturbed where specific findings are made.

  Controlling Cases:

  • Bakanowski v. Bakanowski, 2003 UT App 357, 80 P.3d 153 (abuse-of-discretion review; Jones factors; specific findings on recipient’s condition insulate ruling)
  • Jones v. Jones, 700 P.2d 1072 (Utah 1985) (three mandatory alimony factors: recipient’s needs, recipient’s earning ability, payor’s ability to pay)
  • Bridenbaugh v. Bridenbaugh, 786 P.2d 241 (Utah Ct. App. 1990) (party seeking modification bears burden of proving substantial change in circumstances; grounds for reducing alimony)

  Why It Matters: The decision places the burden squarely on the party seeking modification; a payor cannot shift to the recipient the obligation to re-prove an inability to work previously adjudicated. Unrebutted testimony from the recipient can sustain a finding of continued inability to work. A payor who contests employability must affirmatively present evidence, such as medical or vocational testimony, rather than rely on the recipient’s asserted failure of proof.

• Alimony — Modification

  3. Alimony Modification / Payment of Alimony from Payor’s Separate Property (Retirement Account)

  Claim on Appeal: Husband argued that alimony should be eliminated because, after his retirement, the only source from which it could be paid was his separate half of the retirement account, and continued alimony would effectively award Wife an additional share of property already divided.

  Holding: — Affirmed. Property division and alimony are distinct analyses, and a trial court may properly consider all sources of the payor’s income, including income from a retirement account awarded to the payor as separate property, in assessing ability to pay.

  Statutory Authority: None cited in the opinion. The court relied on case law distinguishing property division from alimony.

  Standard of Review:

  • Abuse of discretion — the trial court’s modification of alimony, which will not be disturbed so long as the court exercises its discretion within appellate standards.

  Controlling Cases:

  • Jones v. Jones, 700 P.2d 1072 (Utah 1985) (primary purpose of alimony is support at the marital standard of living and preventing the recipient from becoming a public charge)
  • Burke v. Burke, 733 P.2d 133 (Utah 1987) (purpose of property division is to allocate property to permit the parties to pursue separate lives)
  • Dogu v. Dogu, 652 P.2d 1308 (Utah 1982) (impliedly approving use of a retirement fund awarded to the payor as the source of alimony payments)
  • Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988) (payor’s retirement income from separately held account considered in ability-to-pay analysis)
  • Mortensen v. Mortensen, 760 P.2d 304 (Utah 1988) (separate, income-producing property may be a source of income for payment of alimony)
  • Sampinos v. Sampinos, 750 P.2d 615 (Utah Ct. App. 1988) (no abuse of discretion where alimony paid from revenue generated by payor’s separate property)
  • Moon v. Moon, 1999 UT App 12, 973 P.2d 431 (Jones factors reapplied on modification; trial court must consider all sources of income)

  Why It Matters: This is the opinion’s principal doctrinal contribution: retirement does not automatically terminate alimony merely because the retirement asset was divided in the property settlement. The court rejected a rule that would let a payor eliminate alimony by living off separate property rather than current earnings. The holding has been cited in later decisions for the proposition that having to use separate property to pay alimony does not foreclose the alimony obligation.

Rules of Evidence

Utah Codes

Rules of Civil Procedure

Utah Code of Judicial Administration

Utah Rules of Appellate Procedure

Utah Rules of Professional Conduct

Case Cited

Litigation and Appellate Strategy

Reversal Predictor

• The trial court applies the wrong burden of proof, requiring the non-moving party to disprove a change in circumstances.
• The trial court excludes a category of the payor’s income (such as separate-property or retirement income) from the ability-to-pay analysis as a matter of law.
• The trial court fails to make specific findings on each Jones factor when modifying alimony.
• Undisputed evidence establishes a shared principal domicile with indicia of a marital-type household, yet the court declines to find common residency.
• The trial court treats the property division as foreclosing alimony from assets allocated in that division.

Mandatory Factor Checklist

On a petition to modify alimony, the court must again address the Jones factors (now codified in Utah Code § 81-4-502):

• The financial needs and condition of the recipient spouse.
• The ability of the recipient spouse to produce sufficient income for himself or herself.
• The ability of the payor spouse to provide support, considering all sources of income, including separate property and retirement assets.

For cohabitation, the payor must establish both elements:

• Common residency: a shared abode both parties consider their principal domicile, for more than a temporary or brief period.
• Sexual contact with the person with whom the recipient resides (not reached in Jensen because common residency failed).

Signal Cluster (High-Risk Appeal Profile)

An appeal from an alimony-modification ruling is most viable when several of the following appear together:

• A modification ruling lacking specific findings on one or more Jones
• A ruling that excludes income sources categorically rather than weighing them.
• A misallocation of the burden of proof between movant and respondent.
• A cohabitation ruling contradicted by undisputed evidence of shared finances, relocated belongings, and abandonment of a separate residence.

By contrast, Jensen presented the opposite profile: detailed findings, unrebutted evidence supporting the recipient, and a legal theory contrary to established precedent.

Strategy Insight

• Husband framed his separate-property argument as a legal question, which was the correct framing, but the argument failed because controlling precedent (Dogu, Mortensen, Throckmorton, Sampinos) cut directly against it.
• His cohabitation and employability arguments were, in substance, evidentiary disputes that could not overcome deferential review, particularly where he had presented no rebuttal evidence.
• The lesson is that an appeal should be framed as a legal error only when the law genuinely supports the proposed rule; otherwise, the effort is better spent building the evidentiary record at trial.

Teaching Value

• Jensen is a compact, frequently cited authority for three recurring propositions: the mixed standard of review for cohabitation, the modification movant’s burden of proof, and the availability of separate-property income to satisfy alimony after retirement.
• It is especially useful in cases involving older couples, retiring payors, and recipients with long-standing medical limitations.

Insights

Utah-Only Jurisprudence

• The opinion relies exclusively on Utah authority: five Utah Supreme Court decisions and eleven Utah Court of Appeals decisions. No out-of-state or federal authority is cited.
• Notably, the opinion cites no statute at all; every issue is resolved through Utah common-law alimony doctrine.

Doctrinal Anchors (Utah Supreme Court)

• Haddow v. Haddow, 707 P.2d 669 (Utah 1985)
  • Established: Common residency means a shared principal domicile for more than a temporary or brief period, implying continuity rather than visits or a sojourn.
  • Role: Supplied both the mixed-question standard of review and the common-residency definition; its facts were treated as analogous in rejecting cohabitation.
• Jones v. Jones, 700 P.2d 1072 (Utah 1985)
  • Established: The three mandatory alimony factors and the principle that alimony’s central function is support at the marital standard of living.
  • Role: Framed the modification analysis and underpinned the distinction between alimony and property division.
• Dogu v. Dogu, 652 P.2d 1308 (Utah 1982)
  • Established: A retirement fund awarded to the payor may serve as a res from which alimony is paid.
  • Role: Primary support for rejecting Husband’s separate-property argument.
• Mortensen v. Mortensen, 760 P.2d 304 (Utah 1988)
  • Established: Separate income-producing property may be considered as a source for payment of alimony.
  • Role: Confirmed that separate-property income is a proper ability-to-pay consideration.
• Burke v. Burke, 733 P.2d 133 (Utah 1987)
  • Established: Property division aims to allocate assets so the parties can pursue separate lives.
  • Role: Used to contrast the purpose of property division with the support function of alimony.

The Most Important Holding

• A payor’s retirement, and the fact that the retirement account was equally divided in the property settlement, does not by itself terminate alimony. Income from the payor’s separately awarded share of the retirement account is a legitimate source for continued alimony.
• The court’s reasoning rests on a policy concern: any contrary rule would allow a payor to defeat alimony simply by ceasing to earn and living off separate property, and would make alimony terminate automatically upon every post-division retirement.
• This holding has had lasting effect; later Court of Appeals decisions cite Jensen for the principle that having to use separate property to pay alimony does not foreclose the alimony obligation.

Reversal Based on Legal Error vs. Factual Error

• The trial court was affirmed in full. No legal or factual error was found.
• Reversal on the cohabitation issue would have required evidence establishing a shared principal domicile (e.g., relocation of belongings, a key, shared expenses, abandonment of the separate residence), which would have rendered the no-cohabitation conclusion incorrect as a matter of law.
• Reversal on the modification issues would likely have required either legal error (such as applying the wrong burden of proof or excluding a category of income as a matter of law) or an absence of specific findings on the Jones

Distinction Between Property Division and Alimony

• The court emphasized that property division and alimony are related but analytically distinct; the division of an asset does not immunize the income it generates from consideration in the alimony calculus.
• The opinion also notes, through Throckmorton, that adjusting alimony may be a more appropriate vehicle than reopening a property settlement when a retirement asset’s treatment is at issue.

Statutory Context (Not Cited in the Opinion)

Although Jensen cites no statute, the Jones factors are now codified in Utah Code § 81-4-502 (formerly § 30-3-5(8)(a)), and the statutory cohabitation-termination provision now appears in Utah Code § 81-4-505 (formerly § 30-3-5(10)). Section 81-4-505 was further amended in the 2026 General Session (effective March 23, 2026), including a one-year limit on seeking termination after the payor knew or should have known of cohabitation. Practitioners should confirm current statutory text before relying on Jensen‘s cohabitation

Practitioner Takeaways

Trial Lawyers

• When alleging cohabitation, develop evidence of each indicator of common residency: keys, shared expenses, open access, relocation of clothing and belongings, and abandonment of the recipient’s separate residence. Evidence of intermittent stays is insufficient.
• When seeking to modify based on the recipient’s employability, present affirmative evidence, such as an independent medical examination or vocational expert, because the movant bears the burden and unrebutted testimony from the recipient can carry the day.
• When defending an alimony recipient against a retirement-based modification, marshal all of the payor’s resources, including retirement distributions, IRA balances, savings, and sale proceeds.

Appellate Lawyers

• Challenges to cohabitation findings face a mixed standard; appellate success generally depends on showing that undisputed facts compel a finding of common residency, not on reweighing evidence.
• Arguments premised on burden-shifting in modification proceedings will fail where the movant presented no rebuttal evidence below.

Retiring Payor Spouses

• Retirement does not automatically end alimony; the court will reassess the Jones factors and may consider retirement assets that were awarded to the payor as separate property.
• Where a payor anticipates retirement, the decree or settlement should expressly address whether and how retirement affects alimony.