In re Marriage of Gibbs —

Citations

• 2019 COA 104
• 446 P.3d 968

Syllabus

Husband moved to modify or terminate his maintenance obligation to wife. He alleged a loss of income resulting from a shoulder injury that rendered him no longer able to perform labor-oriented work. He also alleged he had been diagnosed with stenosis, which would require surgery and affect his ability to work for the rest of his life. Following a hearing, the court denied husband's motion based on its calculation of his monthly income, including imputed rental income from husband's primary residence. On appeal, husband argued that the district court abused its discretion in determining his income for purposes of calculating maintenance. He contended the court miscalculated his self-employment income because it did not accurately calculate the ordinary and necessary business expenses that needed to be deducted from his gross receipts. Here, the district court found that husband's business expenses were offset by in-kind payments he received from his girlfriend's construction company. The court essentially added those payments to his salary and then deducted his business expenses from his salary. Because his monthly business expenses were nearly the same as the monthly in-kind payments for a vehicle, fuel, and cell phone, the district court did not err in calculating husband's self-employment income. Husband also argued that the district court erred in imputing $1,500 per month in rental income to him. Following the parties' dissolution, husband continued living in the marital residence with his girlfriend and her three children as a family. Husband paid the mortgage and his girlfriend paid for utilities and groceries. The district court found that this arrangement was not a fair market exchange and imputed to husband $1,500 per month rental income that he could have generated by renting the house, which was much larger than he needed for himself. No statutory provision addresses whether (1) potential rental income can be imputed to a party for purposes of calculating