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Author: Divorce Utah

Wilson v. Wilson, 2024 UT App 87 – civil stalking injunction, appeals

Wilson v. Wilson – 2024 UT App 87

THE UTAH COURT OF APPEALS

TKS CO-PACK MANUFACTURING, LLC AND TROY WILSON, Appellants and Cross-appellees, v. DOUG WILSON, Appellee and Cross-appellant.

Opinion No. 20210855-CA Filed June 6, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund

The Honorable James R. Taylor

No. 200401547

Michael D. Stanger, Scarlet R. Smith, and R. Jesse Davis, Attorneys for Appellants and Cross-appellees Brady Brammer and Brenton Ranck, Attorneys for Appellee and Cross-appellant, assisted by law student Annie Carmack[1]

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred, with the exception of Part II.B.2.b. JUDGE HARRIS authored a separate opinion regarding Part II.B.2.b, which JUDGE ORME joined.

LUTHY, Judge:

¶1        This opinion addresses a number of issues related to civil stalking injunctions. It also addresses the requirements for judgments as set forth in rule 58A of the Utah Rules of Civil Procedure and the range of discretion given to district courts when deciding whether voluntary dismissal under rule 41(a) of the Utah Rules of Civil Procedure should be granted with or without prejudice.

¶2        Troy Wilson is the president and co-owner of TKS Co-Pack Manufacturing, LLC (TKS). He hired his brother Doug Wilson to work at TKS. After a time, Doug[2] left TKS. Subsequently, Troy and TKS (collectively, the TKS parties) filed a complaint against Doug, which contained several tort claims as well as a request for a civil stalking injunction. With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. The district court granted a temporary stalking injunction, and Doug then filed an answer and counterclaims. Doug later asked that his counterclaims be dismissed, and they were dismissed without prejudice.

¶3        After an evidentiary hearing, the district court issued a permanent civil stalking injunction (the Stalking Injunction) against Doug and in favor of Troy. The Stalking Injunction also protected “[a]ny customer of TKS” and “[a]ny employees of TKS.” Subsequently, Doug posted on Facebook about the Stalking Injunction and communicated with a prior TKS customer (Prior Customer). The TKS parties then filed a motion requesting that Doug be held in contempt for violating the Stalking Injunction. The district court held another evidentiary hearing, applied the standard for criminal contempt, found that Troy had not established the alleged violations beyond a reasonable doubt, and denied Troy’s motion.

¶4        In the meantime, the TKS parties had also moved to dismiss their tort claims without prejudice. Doug opposed the motion and moved for dismissal of the claims with prejudice. The court dismissed the tort claims without prejudice.

¶5        The TKS parties appeal the district court’s decision not to hold Doug in contempt. Doug also appeals, asserting that the Stalking Injunction was not properly granted in the first place and that the district court erred by dismissing the TKS parties’ tort claims without prejudice.[3]

¶6        As to Doug’s appeal, we conclude that the district court did not err in issuing the Stalking Injunction and that the court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s separate opinion, which is joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and related comments violated the Stalking Injunction.

BACKGROUND
Pre-litigation History

¶7        Troy offered Doug, who was then living in California, a job at TKS, a business in which Troy held a 50% interest. Doug moved to Utah and began working at TKS as a production manager. After about a year and a half, Doug left TKS in mid-2020. Following Doug’s departure, Troy received reports from TKS employees that Doug had allegedly behaved inappropriately toward multiple employees while he worked there.

¶8        Doug then began working for TKS’s landlord (Landlord), a company that had its office in the same building as TKS. In his new role, Doug continued to have interactions with TKS employees that the TKS parties believed were harassment. Thus, Troy emailed Landlord to request that it appoint another of its employees as a point of contact for TKS. TKS also terminated the employment of several of its employees who it believed were attempting to sabotage TKS at Doug’s request.

The TKS Parties’ Complaint

¶9        In October 2020, the TKS parties filed a complaint against Doug, requesting a civil stalking injunction and asserting seven tort claims: tortious interference with employment relationships, tortious interference with customer relationships, tortious interference with government relationships, tortious interference with the landlord-tenant relationship, defamation, tortious infliction of emotional distress, and trespass. The TKS parties alleged, among other things, that after Doug left TKS, he had

·        driven a forklift “into TKS’s roll up door”;

·         convinced several TKS employees to help him fabricate safety violations by TKS by doing such things as staging pictures to make it look like TKS was violating workplace safety regulations;

·         convinced several TKS employees to sabotage TKS by doing such things as putting “grease on a brand new filter that was being used in production”;

·         attempted to falsely “blow the whistle” on TKS by reporting that TKS was transporting CBD without a permit when TKS had such a permit;

·         persuaded Landlord that TKS “was dumping paint and other toxic items into the sewer,” resulting in Landlord terminating TKS’s lease and then reinstating it after another company was identified as the source of the dumping; and

·         continued to harass TKS employees by confronting them for speeding and using a roundabout improperly, “overzealously monitor[ing]” them, “sexually harass[ing] female employees, both on site . . . and via text and phone,” and telling “an employee of TKS that he now knows ‘why Cain killed Abel.’”

The TKS parties asserted that “[t]hese actions by Doug [had] caused Troy and other employees of TKS to fear for their safety and alter their commuting patterns in an attempt to avoid a confrontation with Doug.”

Temporary Civil Stalking Injunction

¶10 With their complaint, the TKS parties also filed a motion for an ex parte civil stalking injunction, an ex parte temporary restraining order, and a preliminary injunction. In that motion, the TKS parties alleged many of the details recounted above and requested that the district court “issue a stalking injunction against Doug and issue an injunction in the form of a Temporary Restraining Order and preliminary injunction enjoining Doug from having any contact with any TKS employee (including Troy) or customer, and to stay away from Troy’s home, and to stay out of TKS’s facilities.” The district court issued an ex parte civil stalking injunction on October 27, 2020.

Doug’s Suicide Attempt

¶11 Three days later, Doug attempted suicide, prompting the TKS parties to move to modify the temporary stalking injunction in light of Doug’s alleged actions during that episode. Specifically, the TKS parties alleged that Doug had come with a shotgun in his car to the building that housed TKS and Landlord, that he had gone into the building and left a suicide note, and that he had “then [gone] to the mountains with the intent of taking his own life.” The TKS parties further alleged that Doug had “eventually [been] talked out of killing himself, . . . placed in police custody, and then transferred to a hospital.” They continued, “After being released from the hospital, Doug has returned to work. This is problematic as Doug and Troy both work in the same building and the [temporary stalking injunction] specifically orders Doug to ‘stay away’ from Troy’s work.” The TKS parties explained that law enforcement had “declined” to remove Doug from his workplace because the temporary injunction identified as protected premises “the suite . . . of the building instead of the building itself.” Accordingly, the TKS parties sought an amendment that would clarify that the term “‘stay away’ includes but is not limited to staying away from the building and the parking lot.” They also requested “language specifically stating that Doug is prohibited from possessing a firearm.”

Doug’s Answer and Counterclaims

¶12      In November 2020, Doug filed both an answer to the TKS parties’ complaint and several counterclaims. He asserted that the allegations against him were based on “speculation and rumors” and that he “was distraught over being accused of sexual misconduct.” He also recited the severe impact the allegations were having on his health, job, and marriage. Doug’s complaint then recounted Doug’s attempt to end his life:

On October 30, 2020[,] Doug Wilson left a suicide note at his . . . desk [in Landlord’s office]. The note read:

“To my family I love you all with everything I have. I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight. I have come to the end of the line. Forgive me. I want no funeral and no burial. Cremate me and take my ashes anywhere. Kids I love you so much. Everything I own I give to my wife, the house, the belongings, everything.” —Douglas Wilson.

He did not have any shotgun at the time he left the note. He left [Landlord’s office], obtained a shotgun and went to the mountains with intent to take his own life.

Doug’s complaint relayed how he encountered hunters in the mountains, he voluntarily surrendered the gun to them, and they called the police to help him. It further stated that the police had noted, “Douglas believes [his family] would be better off without him because his brother Troy is going to make him lose his job so he can’t support them.” (Alteration in original.) Doug’s complaint then asserted counterclaims of intentional infliction of emotional distress, defamation/libel/slander, interference with economic and employment relations, and wrongful use of civil proceedings. Doug later voluntarily dismissed his counterclaims, purportedly at the behest of his mother. His counterclaims were dismissed without prejudice.

Permanent Civil Stalking Injunction

¶13 In December 2020, the district court held an evidentiary hearing on the motion for a civil stalking injunction. After hearing evidence and arguments, the court first identified incidents that it felt did not provide grounds for making the stalking injunction permanent. Specifically, it said that the allegation that Doug left the suicide note with the intent to harm Troy was “extreme” and “unlikely” and that “[t]he placement of the note at [Doug’s] work” did not evidence “an intent to direct that note or the activity that was . . . intended toward either . . . [TKS] or [Troy].” The court also said that it did not interpret Doug’s reference to Cain and Abel “as a threat to commit bodily harm.” And it reasoned that Doug’s efforts to “enforce parking restrictions” were not “necessarily retaliatory toward . . . the company . . . or Troy . . . or directly committed in a way that intended . . . either physical harm or emotional distress to Troy.”

¶14      The district court then identified evidence that it felt did support a permanent stalking injunction. It first pointed to conversations that Doug had engaged in with his and Troy’s sister (Sister). The court characterized those conversations as Doug communicating, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” The court said, “That’s personal, that’s harmful; and that evinces an intent to . . . cause emotional distress to a specific person, which is what’s required by the statute.” The court then pointed to a text message Doug sent to a person (Vendor) who works for another company owned by Troy and is frequently on site for TKS. After Vendor had a conversation with a TKS employee while at the TKS plant, Doug texted Vendor asking what the pair had been talking about. The court observed, “[Doug] create[d] the impression that he’s all-knowing, that . . . he sees. He create[d] a sense of unease and discomfort. And that is fearful, and that is emotionally frightening. And that can upset the workings of a company and . . . create a cloud of suspicion and distrust for the company.” Finally, the court pointed to a conversation between Doug and Vendor during which Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled,” which the court said “undermine[d] the wellbeing of the company.” The court concluded by saying that these incidents showed that “Doug engaged in this conduct in order to bring . . . [Troy] down” and “in order to cause distress and ruin the company.” Based on these incidents, the court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].”

¶15      The district court further explained that because it did not consider the suicide-related incident to be part of the “course of conduct” required by the stalking statute, see generally Utah Code § 76-5-106.5(2)(a),[4] it was denying the TKS parties’ request that the injunction include “the firearms prescription.” The court also denied the TKS parties’ request that Doug be restricted from the building housing TKS and Landlord’s offices. Instead, it clarified that the permanent stalking injunction would restrict Doug from being involved in any direct interactions between Landlord and TKS, from entering TKS’s premises within the building, and from acting inappropriately on the surrounding premises, such as repeatedly driving around in circles, hovering, or acting with the intent to intimidate.

¶16      The district court thereafter issued the Stalking Injunction, which did not detail the facts giving rise to its issuance but stated, “For the reasons stated on the record, the Court finds that there is reason to believe that Doug Wilson has stalked Troy Wilson.” The Stalking Injunction contained both a “Personal Conduct Order” and a “No Contact Order.” The Personal Conduct Order read:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The No Contact Order read:

Doug must not contact, phone, text, mail, email, or communicate with, either directly or indirectly in any way with Troy and any other person listed below.

The Stalking Injunction was issued in favor of Troy (not TKS) and listed as additional protected persons Troy’s spouse and children, Vendor, three named TKS employees, “[a]ny customer of TKS,” and “[a]ny employee of TKS.”

Motion for Contempt Sanctions

¶17      In March 2021, the TKS parties filed a motion to hold Doug in contempt for violating the Stalking Injunction. The judge who received and adjudicated the contempt motion was not the one who had presided over the proceedings related to the issuance of the temporary stalking injunction and the Stalking Injunction. In their contempt motion, the TKS parties alleged that Doug had violated the Stalking Injunction by making a Facebook post along with subsequent comments related to the post and by communicating with Prior Customer.

¶18      As to the Facebook post, the TKS parties identified a post by “John Dough” that read verbatim:

I have kept my mouth shut for far to long. I have listened to some of my family member bear false witness against me all in a attempt to cover up wrong doing. Had family members try to hurt me to the point to drive me to take my life. They hoped for it. Being sued because I stood up and talked out. For the first time I am appalled to be part of this family. To have family members turn their backs on me. So Christ like to take one side of a story and make it true. All that evil needs to prevale in this world is that good people do nothing. I am so glad you act like Christians.

In response to comments on this post, “John Dough” also posted two comments:

There was a law suite filed against me. I have the document. The stalking injunction was filed against me as well in court. [Sister] mislead and lied in court about what was going on and about what was said. This is why I sent out the post in the first place. You have only one side of a truth which is based in lies.

and

I am just so glad my family has both sides of the story. Oh wait they don’t. Thanks for getting my side of the story so you you have all the information.

Doug admitted that he “uses the name John Dough on Facebook.”

¶19 As to Doug’s communication with Prior Customer, the TKS parties alleged that Doug had informed Prior Customer, “[B]ecause you are a customer of Troy, I am not allowed to talk to you.” The motion ended with the TKS parties’ request that the court “impose a fine and/or incarceration.”

Dismissal of the TKS Parties’ Tort Claims

¶20      By June 2021 and before a hearing on the contempt motion, the parties had engaged in little to no discovery on the TKS parties’ tort claims, and the TKS parties moved to voluntarily dismiss those claims, stating, “Having prevailed on their 8th Cause of Action (Civil Stalking), and having been granted [the] Stalking Injunction against Doug . . . , the TKS [p]arties have obtained the primary relief sought and needed to protect Troy, his family and TKS’[s] employees and customers from Doug.”

¶21      Doug opposed granting a dismissal of the TKS parties’ tort claims without prejudice, and he moved for dismissal of the claims with prejudice. He contended that the TKS parties never “offered any initial disclosures or proof of the . . . devastating smears on Doug’s moral character,” that they did not participate in discovery though the fact discovery period would end in “less than twenty days,” and that they “should not be allowed to raise these serious allegations, idle away their time before the court, and then withdraw their claims with the intent of bringing them again some other time.”

¶22      The court held a hearing on this matter in July 2021. At the conclusion of the hearing, the court stated,

I would have found excusable delay on such a short time frame. I find that the [TKS parties] were involved with other stuff in the case even if they weren’t doing that disclosure. Had they sought additional time from me, I would have granted it. I am loath to dismiss cases. I routinely grant more time . . . for the public policy reasons [the TKS parties’ counsel] outlined about cases being resolved on the merits. So if Doug intends to re-pursue his claims, then I think that it is going to open up the necessity to hear a lot of the evidence that Troy alleges in his claims.

On September 14, 2021, the court issued a written “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss,” in which it dismissed the TKS parties’ tort claims without prejudice.

Hearing and Decision on the Motion for Contempt Sanctions

¶23 The following week, the court held a hearing on the contempt matter, with the judge who had not conducted the original stalking injunction proceedings presiding. The court informed the parties that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. Thus, the court limited the witnesses to giving “testimony in regards to the allegations in the contempt proceeding.” The TKS parties contended that “the question of . . . whether [Troy] suffered emotional distress [from the alleged violations of the Stalking Injunction] is context specific” and that evidence of events that occurred before the contempt action was necessary to establish “what a reasonable person in Troy’s shoes looks like.” The court indicated that it would “take judicial notice of the fact that there were prior proceedings” and “of the order that was issued by [the previous judge] and the findings that [the previous judge] made in relation to” the initial proceedings. The TKS parties noted their concern that “there was testimony underlying those orders” and “some of the facts that . . . came out [were not] necessarily memorialized in [the Stalking Injunction] itself, or in [the prior] ruling.” Doug also stated his contrary concern that Troy not be allowed to testify about matters the previous judge “found irrelevant or unpersuasive for purposes of [the Stalking Injunction].” The court then reiterated its view that “the scope of [the contempt] proceeding” was the “limited allegations of the order [to show cause].”

¶24      During the hearing, Doug did not dispute that he authored the Facebook post and related comments that the TKS parties contended violated the Stalking Injunction, nor did he dispute their contents. Also during the hearing, the court received evidence of an email Doug sent to Prior Customer in March 2021 asking Prior Customer to tell him the last date he did any business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. Prior Customer also testified that when he had initiated contact with Doug in the past, Doug had said, “[I]f you’re a TKS customer, I can’t talk to you . . . .”

¶25 The court issued an order on the contempt motion on October 13, 2021. Therein the court first explained that it was applying the standard for criminal contempt:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

¶26 The court then addressed Doug’s Facebook post and comments by turning to the language of the Stalking Injunction’s Personal Conduct Order and noting that it “contain[ed] a citation” to Utah Code section 76-5-106.5 “for the legal definition of stalking” and that “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party.” But the court also noted that the Stalking Injunction did “not contain that language, and no evidence exist[ed] in the record that Doug Wilson ever consulted the statute.” The court then determined that “because no evidence exist[ed] [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exist[ed] as to whether Doug intended the message to violate[] the order.” The court highlighted that “[n]either Troy Wilson nor any other protected party were friends on the Facebook platform with Doug Wilson at the time of his . . . posting, and Doug deleted the post and his account shortly thereafter.” “Moreover,” the court continued, “the post does not reference Troy Wilson by name, such that acquaintances unfamiliar with the details of the lawsuit would not associate Troy with the content of the post.” And the court observed that “[i]n the subsequent comments to the original post, Doug Wilson asserted that his reference to ‘my family member’ who bore ‘false witness against me’ related to [Sister]” and Sister was not “among the protected parties” of the Stalking Injunction. The court concluded that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exist[ed] as to whether Doug intended the message to reach Troy and cause Troy emotional distress.”

¶27      The court also considered “the circumstances surrounding the case at bar,” which involved “great turmoil in the extended Wilson family” as “Doug and Troy are the youngest of 11 siblings, and the controversy was causing division and divided loyalties in the family.” Given this, the court concluded that “a reasonable doubt exist[ed] as to whether the [Facebook] post was designed to harass or annoy Troy, rather than Doug’s stated intention of determining who in the family supported him.” Also of note, the court found “that all of the witnesses from [the] Wilson family possess[ed] such significant biases that the court [could not] credit any of their testimony beyond a reasonable doubt.”

¶28 The court further determined that “a reasonable doubt exist[ed] as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post, even if the post would cause some lesser degree of annoyance.” On this front, the court stated that “[t]he only persons who commented on Doug’s Facebook post were immediate Wilson family members, and the only persons who spoke to Troy about the post were family members and a small number of employees and old family friends.” The court indicated that the evidence suggested that “all of the family members and acquaintances who viewed or learned about the post [held] Troy in high esteem and the post did not influence their perception of him.”

¶29 As to Doug’s communication with Prior Customer, the court stated that “the content” of Doug’s messages to Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶30 Ultimately, as to both the Facebook post and Doug’s communication with Prior Customer, the court ruled that the TKS parties “failed to meet the heavy burden of establishing the alleged violations beyond a reasonable doubt” and thus denied the motion to find Doug in contempt.

The Appeals

¶31 In November 2021, the TKS parties appealed the district court’s decision declining to hold Doug in contempt. Later that same month, Doug appealed the Stalking Injunction and the district court’s decision to dismiss the TKS parties’ other claims without prejudice.

ISSUES AND STANDARDS OF REVIEW
Doug’s Appeal

¶32 As an initial matter, the TKS parties assert that this court lacks jurisdiction over Doug’s appeal. “Whether this court has jurisdiction over [an] appeal is a question of law that we review for correctness.” Ashton v. Learnframe, Inc., 2008 UT App 172, ¶ 7, 185 P.3d 1135, cert. denied, 199 P.3d 970 (Utah 2008).

¶33      Besides jurisdiction, Doug’s appeal raises three issues. First, Doug asserts that the district court erred by employing a legally incorrect interpretation and application of the stalking statute when it ruled that Doug’s actions “aimed at [TKS]” could form the basis of the Stalking Injunction in favor of Troy. “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Baird v. Baird, 2014 UT 08, ¶ 16, 322 P.3d 728 (cleaned up); see also Ragsdale v. Fishler, 2021 UT 29, ¶¶ 15, 20, 491 P.3d 835 (reviewing “for correctness” the district court’s determination of whether particular actions by the respondent legally qualified as a course of conduct “directed at” the petitioner (cleaned up)).

¶34      Second, Doug challenges the district court’s finding that he knew or should have known that his actions constituting a “course of conduct” under the stalking statute would cause a reasonable person in Troy’s position to experience emotional distress. “On review of both criminal and civil proceedings, we accept the trial court’s findings of fact unless they are clearly erroneous.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (cleaned up), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991); see also Baird, 2014 UT 08, ¶ 16 (“When reviewing factual determinations, [appellate] court[s] will only rule as a matter of law if the evidence is so clear and persuasive that all reasonable minds would find one way.” (cleaned up)).

¶35 Finally, Doug argues that the district court erred by dismissing the TKS parties’ tort claims without prejudice. “A trial court has discretion to determine whether to grant a motion for voluntary dismissal,” and it is “entitle[d] . . . to grant or dismiss the motion upon such terms and conditions as the court deems proper.” H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 4, 323 P.3d 1025 (cleaned up). Accordingly, “we review a trial court’s decision” as to granting a voluntary dismissal with or without prejudice “for an abuse of discretion.” Id. (cleaned up).

The TKS Parties’ Appeal

¶36      In their appeal, the TKS parties assert that the district court erred when it applied “the criminal standard” for contempt. They further contest the court’s determination not to hold Doug in contempt. When, as here, the alleged “contempt is not committed in the immediate view and presence of the court or judge, we review a district court’s findings of fact for clear error and apply a correction of error standard to our review of the district court’s legal determinations.” Valerios Corp. v. Macias, 2015 UT App 4, ¶ 10, 342 P.3d 1127 (cleaned up). Once a court finds the existence of facts necessary to support a contempt sanction, “the decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up). “That discretion includes not just the power to decide whether a party should be held in contempt, but the power to determine whether the purpose of a particular contempt order is civil or criminal.” Dickman Family Props., Inc. v. White, 2013 UT App 116, ¶ 3, 302 P.3d 833 (cleaned up), cert. denied, 312 P.3d 619 (Utah 2013).

¶37      The TKS parties also challenge the district court’s decision to exclude from the contempt proceedings evidence of the full circumstances surrounding the incidents that gave rise to the Stalking Injunction. We review the district court’s “determinations regarding the admissibility of evidence under an abuse of discretion standard.” Anderson, 2008 UT App 3, ¶ 25.

ANALYSIS

I. Doug’s Appeal

¶38 We first address Doug’s appeal. Doug challenges the district court’s decision to issue the Stalking Injunction in the first instance. He also challenges the district court’s decision to dismiss the TKS parties’ tort claims without prejudice. For their part, the TKS parties contend that “this court lacks jurisdiction to consider [Doug’s] appeal because it was not made timely.” We begin by addressing the threshold issue of jurisdiction. We then address, in turn, Doug’s challenges to the district court’s orders.

A.        Whether This Court Has Jurisdiction

¶39 The TKS parties contend that Doug did not file a timely notice of appeal and, therefore, that this court lacks jurisdiction over his appeal. According to the TKS parties, the court’s order dismissing the TKS parties’ claims without prejudice on September 14, 2021, was a final judgment that triggered the thirty-day deadline for Doug to file a notice of appeal. Thus, the TKS parties assert, “Doug’s appeal of the principal action was due October 14, 2021—more than a month before Doug filed a notice of appeal.” We hold that the September 14 order was not a final judgment and, therefore, that it did not trigger the thirty-day deadline for Doug to file a notice of appeal. Instead, the thirty-day deadline for Doug to file a notice of appeal was triggered 150 days after the court entered the September 14 order.[5]

¶40      Rule 4 of the Utah Rules of Appellate Procedure provides that, with a few exceptions not applicable here, “in a case in which an appeal is permitted as a matter of right from the trial court to the appellate court, the notice of appeal . . . must be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” Utah R. App. P. 4(a). Rule 58A of the Utah Rules of Civil Procedure requires that, again with some exceptions that are not applicable here, “[e]very judgment and amended judgment must be set out in a separate document ordinarily titled ‘Judgment’—or, as appropriate, ‘Decree.’” Utah R. Civ. P. 58A(a)—(b). Rule 58A also provides that when “a separate document is required, a judgment is complete and is entered at the earlier of” (A) when “the judgment is set out in a separate document signed by the judge and recorded in the docket” or (B) when “150 days have run from the clerk recording the decision, however designated, that provides the basis for the entry of judgment.” Id. R. 58A(e)(2).

¶41      In Griffin v. Snow Christensen & Martineau, 2020 UT 33, 467 P.3d 833, our supreme court analyzed an “Order of Dismissal with Prejudice” entered by the trial court in that case to determine whether it met the requirements of rule 58A(a) and was thus a “judgment” under that rule. Id. ¶¶ 23–28. The order had been prepared in response to a directive from the trial court to the defendant’s counsel to “draft[] a proposed order confirming the court’s oral ruling” on the defendant’s motion to dismiss. Id. ¶ 23. The supreme court held that the order did not qualify as a “judgment” under rule 58A(a). Id. ¶ 28.

¶42 The supreme court first explained that “the goal of Utah rule 58A(a) is to impose a clear line of demarcation between a judgment and an opinion or memorandum” and that “to distinguish a judgment from an order or ruling, it should be identified accordingly.” Id. ¶ 22 (cleaned up). The court then observed that the order at issue “was not titled ‘Judgment,’ but was instead named ‘Order of Dismissal with Prejudice’” and that this was “not a mere technical deviation” from the rule. Id. ¶ 23. Rather, the title “accurately described” the document’s purpose, which was to confirm the trial court’s oral ruling, not to be “a separate judgment documenting the resolution of all claims in the district court.” Id.

¶43      The supreme court next emphasized the rule’s requirement that a “judgment be set out in a ‘separate document.’” Id. ¶ 24 (cleaned up). It noted that “separate means individual; distinct; particular; disconnected” and declared that “a separate judgment, by definition, must be self-contained and independent from any other document in the case, including the decision that gave rise to it.” Id. (cleaned up). Even if a particular decision “disposes of all claims in the action” and the trial court “directs a party to prepare an order confirming [that] decision,” the court explained, “a separate judgment is required” in order to comply with rule 58A(a). Id. ¶ 26 (cleaned up). Although the order at issue in Griffin was “separate from the [trial] court’s oral ruling and accompanying minute entry, that [was] beside the point.” Id. To be a “judgment,” it needed to be wholly separate from the decision giving rise to the judgment. See id.

¶44 Finally, and “[m]ost importantly,” the Griffin court observed that the order in that case “serve[d] a different function than a 58A(a) judgment.” Id. ¶ 27. The purpose of “a separate 58A(a) judgment” is not to “operate at the decision level” but, rather, to “operate[] at the case level to signal that all claims involving all parties have been resolved.” Id. The fact that the order at issue in Griffin “contain[ed] procedural history, legal reasoning, and factual content” indicated that it operated at the decision level, not the case level. Id. ¶ 28.

¶45 In sum, because the document in Griffin was not “clearly identified as a judgment,” was not “separate from the court’s decision on the relevant motion,” and was not “limited to only that information relevant to a judgment,” it was “not a separate 58A(a) judgment.” Id.

¶46 The reasoning of Griffin applies here, compelling the conclusion that the September 14 order is not a separate rule 58A(a) judgment either. Like the order in Griffin, the September 14 order is not titled “Judgment” but, instead, is titled “Order Granting Petitioners’ Motion to Dismiss and Denying Respondent’s Motion to Dismiss.” Also like the order in Griffin, the September 14 order does not amount to a self-contained judgment that is independent from the decision that gave rise to it. Finally, the September 14 order operates primarily at the decision level, not at the case level. It states, in full:

This case came on for hearing on July 13, 2021[,] on: (1) the Motion to Dismiss filed by [the TKS parties], which sought voluntary dismissal of Causes of Action 1–7 contained in the Verified Complaint & Petition for Civil Stalking Injunction (“the Complaint”), without prejudice; and (2) [Doug’s] Motion to Dismiss, which sought dismissal of the same claims with prejudice. . . . The [c]ourt, having considered the motions and corresponding memoranda, and the oral argument of counsel, for the reasons stated on the record, HEREBY ORDERS THAT:

1. [The TKS parties’] Motion to Dismiss is GRANTED;

2. [Doug’s] Motion to Dismiss is DENIED;

3. Claims 1–7 in the Complaint are dismissed without prejudice; [and]

4. With Claim 8 having resulted in the issuance of a civil stalking injunction, and [Doug] having previously dismissed his counterclaim, all claims in this case have now been resolved.

While the order does not wax long on “procedural history, legal reasoning, and factual content,” id., it does address the procedural posture of the motions, recount details of the hearing, and incorporate the reasoning the court stated at the hearing—all decision-level information. Admittedly, the last sentence of the order says that “all claims in this case have now been resolved,” which is a case-level statement. But because the order predominantly operates at the decision level, it does not qualify as a judgment under rule 58A(a). Cf. In re Cendant Corp., 454 F.3d 235, 241 (3d Cir. 2006) (explaining that to qualify as a judgment under federal rule 58(a), an order “must omit (or at least substantially omit) the [d]istrict [c]ourt’s reasons for disposing of the parties’ claims”).[6]

¶47      The TKS parties ask us to conclude that the September 14 order qualifies as a judgment because “the parties exchanged emails about and edited the document to clarify that the case was over with nothing left to be litigated.” After the TKS parties’ counsel emailed the proposed order to Doug’s counsel for approval, Doug’s counsel responded with an email saying, “What is your position as to [cause of action] #8 (injunction)[?] We probably need to make it clear as to whether the case is over or not through this. It seems that this ends the case, but I am not sure if you are of the same opinion.” Counsel for the TKS parties wrote back, “We are of that opinion. Each of the claims in the Verified Complaint has been resolved, and with this dismissal and Doug’s earlier dismissal of his counterclaim, there is nothing left to be litigated in this case. For clarity, I’ve added a sentence in the attached.” From this exchange, it does appear that the parties intended for the September 14 order to serve as a judgment under rule 58A(a). But because this court’s jurisdiction is tied to a timing determination that depends on when a final judgment is entered, the question of whether a document complies with rule 58A(a) cannot turn on the parties’ subjective intent. Cf. Duke Cap. LLC v. Proctor, 2023 UT App 59, ¶ 25, 531 P.3d 745 (recognizing that “parties cannot create, by contract, jurisdiction that would not otherwise exist” (cleaned up)). Instead, rule 58A(a) compliance is determined by whether the document at issue objectively satisfies the requirements of the rule.

¶48 The September 14 order objectively does not satisfy the requirements of rule 58A(a), and it therefore did not trigger a thirty-day deadline to appeal. Instead, that deadline was triggered 150 days after the clerk recorded the September 14 order. See Utah R. Civ. P. 58A(e)(2)(B). Thus, Doug’s appeal, which was filed before those 150 days had run, was timely. See Utah R. App. P. 4(c) (“A notice of appeal filed after the announcement of a decision, judgment, or order but before entry of the judgment or order will be treated as filed after such entry and on the day thereof.”). We therefore have jurisdiction to consider it.

B.        Whether the Stalking Injunction Was Proper

¶49      Having determined that we have jurisdiction to consider Doug’s appeal, we now address his first contention, which is that the district court should not have granted the Stalking Injunction in the first instance. “Under Utah’s civil stalking [injunction] statute, a person who believes that he or she is the victim of stalking may obtain an injunction against an alleged stalker” by “prov[ing] by a preponderance of the evidence that an offense of stalking has occurred.” Ragsdale v. Fishler, 2021 UT 29, ¶ 25, 491 P.3d 835 (cleaned up); see also Utah Code § 78B-7-701. At the time of Doug’s alleged stalking, to prove that an offense of stalking had occurred, a person was required to show that (1) the alleged stalker “intentionally or knowingly engage[d] in a course of conduct directed at [the] person” and (2) the alleged stalker knew or should have known “that the course of conduct would cause a reasonable person to fear for the person’s own safety or suffer other emotional distress.” Ragsdale2021 UT 29, ¶ 25 (cleaned up); see also Utah Code § 76-5-106.5(2) (2020). Doug asserts that (1) the district court committed legal error when it ruled that Doug had engaged in a course of conduct and (2) even if Doug had engaged in a course of conduct, the evidence does not support a finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress. We disagree with each of Doug’s assertions.

1.         Course of Conduct

¶50      Doug asserts that the court committed legal error when it ruled that he had engaged in a course of conduct. The stalking statute’s definition of a “[c]ourse of conduct” is broad. See Utah Code § 76-5-106.5(1)(a)(i). It defines a course of conduct as “two or more acts directed at or toward a specific individual,” id., and it says that those acts may include “acts in which the actor . . . communicates to or about an individual, or interferes with an individual’s property . . . directly, indirectly, or through any third party,” id. § 76-5-106.5(1)(a)(i)(A). It also says that the acts may include instances when the actor “appears at the individual’s workplace or contacts the individual’s . . . coworker”; “enters property owned, leased, or occupied by an individual”; or “sends material . . . for the purpose of . . . disseminating information about . . . the individual to a . . . coworker, friend, or associate of the individual.” Id. § 76-5-106.5(1)(a)(i)(B)(II)–(IV). Any of the foregoing types of conduct qualifies to be part of a course of conduct even if the actor “uses a computer, the Internet, text messaging, or any other electronic means to commit [the] act.” Id. § 76-5-106.5(1)(a)(i)(B)(VI).

¶51      In this case, Doug agrees that the district court identified three instances of stalking behavior that the court said amounted to a course of conduct. First, the court identified the conversations during which Doug essentially told Sister, “I will ruin Troy. I will contact customers. I will bring the company down. . . . [T]hey will lose the business. They’ll lose everything.” Second, the court identified the text message Doug sent to Vendor asking what he had been talking about with a TKS employee, even though Doug had not been visibly present during the conversation and the participants would not, therefore, have had reason to know that Doug was aware the conversation had occurred. Third, the court identified a conversation between Doug and Vendor wherein Doug “suggested that he was going to go to . . . [a] customer [of TKS] and tell them how their . . . product [was] being handled.”

¶52      After identifying these instances of stalking behavior, the district court said, “[I’m] satisfied to a preponderance that there is a course of action, that it was directed in such a way that although it was aimed at the company, [it] was aimed at the company in a particularly harmful way and that it satisfies the requirements of the stalking [statute].” Based on this statement, Doug contends that the court’s finding of a course of conduct was “mistaken as a matter of law” because “[n]owhere in the stalking statute does it suggest that a harm can be directed at a company” and qualify as part of a course of conduct but, rather, “harms to companies, as opposed to specific individuals, are simply not contemplated by the statute.” Restated, we understand Doug’s argument to be that conduct that the court acknowledges was “aimed at [TKS]” cannot at the same time legally qualify as conduct “directed at” Troy for purposes of finding a course of conduct under the stalking statute.[7]

¶53 Our supreme court considered a related question in Ragsdale v. Fishler, 2021 UT 29, 491 P.3d 835. There, the director of “an inpatient treatment facility for young women recovering from severe depression and anxiety” sought a civil stalking injunction protecting her from a neighbor living on the same street as the facility. Id. ¶¶ 1, 6–7. The neighbor “feared [the facility] would increase noise and traffic in the neighborhood,” and he “began protesting the facility directly” by placing “signs in his yard” that disparaged the facility. Id. ¶¶ 6–7. “He also began flipping off and swearing at employees, clients, and anyone else involved with [the facility].” Id. ¶ 7. Eventually, after the neighbor routinely flipped off the director and began “coming out of his garage to say things” to her directly, the director sought a stalking injunction against the neighbor. Id. ¶¶ 7–9. The district court issued an ex parte temporary injunction, but following an evidentiary hearing, it declined to issue a permanent stalking injunction, reasoning that the neighbor had “not direct[ed] his conduct at [the director] but toward [the facility] as a business.” Id. ¶¶ 9, 12.

¶54      On appeal, the supreme court ruled that the district court had “erred in concluding that because [the neighbor] claimed to subjectively target only [the facility], he did not direct his conduct at [the director].” Id. ¶ 24. The supreme court observed that “nothing in the statute defines the term ‘directed at’” or “expressly indicate[s] that [a stalking] petitioner must be the ‘ultimate target’ of a respondent’s course of conduct.” Id. ¶ 31. Instead, the court explained, “regardless of whether a petitioner is a respondent’s ultimate target, the fact that the respondent engaged in any act proscribed by the statute two or more times makes his or her conduct ‘directed at’ the petitioner.” Id. ¶ 32. Thus, the Ragsdale court concluded, “the person toward whom a respondent’s behavior is ‘directed at’ . . . is determined by an objective assessment of whether the respondent engaged in conduct prohibited by the stalking statute.” Id. ¶ 37. “And this is true even where a respondent directs his or her conduct at a petitioner indirectly or through a third party.” Id. (cleaned up). Accordingly, “[t]he fact that [the facility] was allegedly [the neighbor’s] ultimate target [did] not shield him” from a finding that his actions constituted a course of conduct toward the director. Id. ¶¶ 39, 42. “It simply mean[t] [that the facility] could potentially obtain an injunction against [the neighbor] as well.” Id. ¶ 39; see also supra note 7. Based on this holding, the supreme court remanded the Ragsdale case to the district court for a course-of-conduct determination under a proper understanding of the statute. 2021 UT 29, ¶ 43.

¶55 Another case merits mention in this context as well. In Carson v. Barnes, 2016 UT App 214, 385 P.3d 744, a petitioner sought a stalking injunction based on an alleged course of conduct that included an incident where the respondent had taken “a handgun from his vehicle and confronted” two business associates of the petitioner when the petitioner was not present. Id. ¶¶ 3, 9, 16. The respondent contended that reliance on this incident was “problematic because [the petitioner] was not present, and therefore [the respondent’s] actions on that day were not ‘directed at’ [the petitioner] as the statute requires.” Id. ¶ 16. We disagreed and held that “the statute does not require the victim to be physically present for an act to be considered in the course of conduct” because “the plain language of the statute . . . includes situations in which the actor comes to the person’s workplace or contacts the person’s . . . coworkers, without requiring the presence of the victim.” Id. ¶¶ 16–17 (cleaned up).

¶56 The Ragsdale and Carson holdings apply to this case. Specifically, under the Ragsdale holding, the district court’s acknowledgment that Doug’s conduct “was aimed at [TKS]” is not legally at odds with a determination that Doug had engaged in a course of action directed at Troy. That is because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the statute. Doug’s conversations with Sister wherein he said, among other things, that he would ruin Troy amounted to acts in which Doug “communicate[d] . . . about [Troy] . . . directly, indirectly, or through any third party.” Utah Code § 76-5-106.5(1)(a)(i)(A)(I). And Doug’s text message to Vendor about a conversation Doug had not been visibly present for as well as Doug’s conversation with Vendor wherein he suggested that he was going to tell a TKS customer how their product was being handled each amounted to Doug “contact[ing] [Troy’s] . . . coworker,” id. § 76-5-106.5(1)(a)(i)(B)(II), and perhaps also to Doug “send[ing] material . . . to a . . . coworker” of Troy “for the purpose of . . . communicating with [Troy],” id. § 76-5-106.5(1)(a)(i)(B)(IV). Additionally, under the Carson holding, none of these actions by Doug are disqualified from contributing to a course of conduct directed at Troy by virtue of the fact that Troy was not present for or the direct recipient of the conduct. Because an objective assessment reveals that each of the three instances of stalking behavior the court identified qualify as conduct prohibited by the stalking statute as against Troy, the court committed no legal error by ruling that these three instances constituted a course of conduct directed at Troy, even if the same instances might also have been aimed at TKS.

2.         Emotional Distress

¶57      Doug also asserts that, even if he engaged in a course of conduct directed at Troy, the evidence does not support the district court’s implicit finding that Doug knew or should have known that the course of conduct would cause a reasonable person to suffer emotional distress.[8] At the time of Doug’s alleged conduct, a determination that stalking had occurred required a finding that the actor “[knew] or should [have known] that the course of conduct would cause a reasonable person . . . to fear for the person’s own safety or the safety of a third person” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2) (2020).[9] The statute defines “[e]motional distress” to mean “significant mental or psychological suffering.” Id. § 76-5-106.5(1)(a)(ii)(A) (2024). And it defines “[r]easonable person” to mean “a reasonable person in the victim’s circumstances.” Id. § 76-5-106.5(1)(a)(v). “By including ‘in the victim’s circumstances’ as part of the reasonable person definition, the statute provides for an individualized objective standard, meaning that a court must consider the entire context surrounding the defendant’s conduct.” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up). “Courts applying this individualized objective standard have considered such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, and the cumulative effect of the defendant’s repetitive conduct.” Id. (cleaned up). “Another consideration could be whether the behavior might cause damage to one’s reputation, relationships, or livelihood.” Id. (cleaned up).

¶58 With regard to the consideration of whether a course of conduct might cause damage to one’s reputation, relationship, or livelihood, the stalking case of Richins v. Weldon, 2023 UT App 147, 541 P.3d 274, is instructive. There, this court emphasized that the respondent “was saying very negative things” about the petitioner, a vice president of a company, to the petitioner’s “fellow employees and boss, including telling [the boss] that he should fire” the petitioner. Id. ¶¶ 2, 69. Because the respondent’s “behavior could have damaged [the petitioner’s] work relationships and reputation as well as his livelihood,” we determined that “ample evidence existed for the district court to conclude that a reasonable person in [the petitioner’s] circumstances would feel emotional distress.” Id. ¶ 69.

¶59      Here, Doug was a former production manager of TKS who was familiar with TKS’s operations and employees. After leaving TKS, he was employed by Landlord and continued to work in the same building that housed TKS. Thus, Doug was well positioned to harm Troy by harming TKS. And that’s exactly what he told Sister he intended to do. Doug asserts that “[e]xpressing an intent to sue is not emotionally distressing” and that “[w]anting to ‘ruin’ someone is more so an expression of frustration or anger rather than a phrase intended to cause significant stress or suffering.” We agree that a threat of civil litigation by itself would not satisfy the emotional distress component of stalking. But Doug did not simply threaten to file a lawsuit, and we do not agree that, under the circumstances, the court was required to interpret Doug’s express desire to “ruin” Troy and cause both TKS and Troy to “lose everything” to be a mere expression of frustration. Actions undermining TKS could certainly undermine Troy’s livelihood where Troy held a 50% interest in TKS. And if TKS employees felt targeted by Doug in his effort to get at Troy, that could certainly interfere with Troy’s work relationships. Indeed, the district court specifically found that the sum of Doug’s communications to Sister “evince[d] an intent to . . . cause emotional distress to a specific person,” namely Troy; that the text from Doug to Vendor “create[d] the impression” that Doug was “all-knowing” and “create[d] a sense of unease and discomfort” that could “upset the workings of a company and . . . create a cloud of suspicion and distrust for the company”; and that the conversation wherein Doug “suggested that he was going to go to . . . [a] customer and tell them how their . . . product [was] being handled” “undermine[d] the wellbeing of the company.” All of these findings were reasonable under the circumstances, and they amply support the overarching finding that Doug knew or should have known that his course of conduct would cause emotional distress to a reasonable person in Troy’s position.

¶60 Accordingly, Doug has failed to demonstrate that the district court erred in issuing the Stalking Injunction.[10]

C.        Whether the TKS Parties’ Tort Claims Were Properly Dismissed Without Prejudice

¶61    Apart from challenging the Stalking Injunction, Doug also argues that the district court abused its discretion when it dismissed the TKS parties’ tort claims without prejudice, as opposed to with prejudice. Rule 41 of the Utah Rules of Civil Procedure indicates that “[u]nless the order states otherwise, a [voluntary] dismissal [by court order] is without prejudice.” Utah R. Civ. P. 41(a)(2). This provision confirms that the default for voluntary dismissals is dismissal without prejudice. The rule also directs a court to grant a motion for voluntary dismissal “only on terms the court considers proper.” Id. In Rohan v. Boseman, 2002 UT App 109, 46 P.3d 753, cert. denied, 59 P.3d 603 (Utah 2002), we adopted the Tenth Circuit’s analysis in Ohlander v. Larson, 114 F.3d 1531, 1537 (10th Cir. 1997), which includes a list of “relevant factors the trial court should consider” when determining “proper” terms of dismissal under rule 41(a)(2). Rohan, 2002 UT App 109, ¶¶ 20–22 (cleaned up). The Ohlander factors include “the opposing party’s effort and expense in preparing for trial; excessive delay and lack of diligence on the part of the movant; insufficient explanation of the need for a dismissal; and the present stage of the litigation.” Id. ¶ 21 (cleaned up). These factors have since been employed in analyzing a district court’s decision to grant or deny a motion for voluntary dismissal, see, e.g.Keystone Ins. Agency v. Inside Ins., 2019 UT 20, ¶¶ 25‒26, 445 P.3d 434, and in analyzing a district court’s decision to grant a motion for voluntary dismissal with or without prejudice, see H&H Network Services, Inc. v. Unicity Int’l, Inc., 2014 UT App 73, ¶ 5, 323 P.3d 1025. These factors “are by no means exclusive[,] and any other relevant factors should also be considered.” Id. (cleaned up).

¶62      Doug frames his argument in terms of the factors set forth in Westinghouse Electric Supply Co. v. Paul W. Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975), which are used when determining whether a dismissal with prejudice for failure to prosecute should be granted: “the length of time since the suit was filed,” “the conduct of both parties,” “the opportunity [the parties have] had to move the case forward and what they have done about it,” “what difficulty or prejudice may have been caused to the other side,” and “whether injustice may result from the dismissal.” Id. at 879. These factors are similar to the Ohlander factors, and we agree that some of them are also relevant here.

¶63      Under the Ohlander and Westinghouse factors that we deem to be relevant here, we conclude that the district court did not abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. First, as to whether injustice resulted from a dismissal without prejudice, we note that Doug’s claims—which he raised as counterclaims to the TKS parties’ complaint—were also voluntarily dismissed without prejudice, leaving Doug able to bring his claims again in the future if he so desires. On this score, the court’s dismissal of the TKS parties’ claims without prejudice preserved parity between the parties regarding possible future litigation, an outcome that appears just on its face. Cf. Clear Creek Dev., LLC v. Peterson Pipeline Ass’n, 2024 UT App 22, ¶ 24, 545 P.3d 306 (stating, in the context of determining when a counterclaim is compulsory under rule 13(a) of the Utah Rules of Civil Procedure, that an outcome “allowing both parties the option to bring their claims anew in a subsequent action . . . is certainly the more just outcome”).

¶64      Doug argues that the district court abused its discretion by dismissing the TKS parties’ claims without (as opposed to with) prejudice because “[t]he case had been on the court’s docket for almost eight months,” “fact discovery was set to end [in] less than three weeks,” and “the TKS parties had done nothing to litigate any of their [tort] claims.” These facts implicate the Ohlander factor regarding excessive delay and lack of diligence on the part of the movant. But we believe that these factors ultimately weigh neutrally or in the TKS parties’ favor here. During the eight months that their tort claims were pending, the TKS parties did not exhibit a lack of diligence generally; they were actively litigating their request for a stalking injunction as well as their motion for contempt sanctions. Additionally, we credit the district court’s indication that, in its view, the eight-month delay in discovery was a relatively “short time frame” under the circumstances and that an allowance of “additional time” for discovery would have been merited if the TKS parties had sought it.

¶65      As to the factor regarding the opposing party’s expense in preparing for trial, we do not have reason to doubt Doug’s claim that his litigation expenses “amounted to over a third of his yearly salary.” Yet those expenses were nevertheless limited by the TKS parties’ decision not to initiate depositions and other costly discovery related to their tort claims while they litigated the Stalking Injunction. Thus, we believe that this factor weighs out neutrally when it comes to evaluating the propriety of dismissing the TKS parties’ claims without prejudice.

¶66 Finally, Doug argues that dismissal with prejudice was required because the TKS parties’ “unsubstantiated claims have cost [him] his personal relationships and led him to try and commit suicide.” While we are not unsympathetic to the emotional and relationship costs that are often incurred through litigation, Doug provides no support for the proposition that this type of prejudice is properly within the scope of our inquiry. Without such authority, we are unconvinced that emotional and relationship costs constitute the type of “legal prejudice” that the Ohlander factors are designed to prevent. See 114 F.3d at 1537 (explaining that “[t]he parameters of what constitutes ‘legal prejudice’ are not entirely clear” but providing factors to guide this inquiry, which speak in terms of “effort,” “delay,” “expense,” and “diligence”). Indeed, although to this point the TKS parties’ tort claims have not been substantiated, there has been no contention that they are frivolous, and our system does not condition the ability to maintain potentially meritorious litigation on a showing that the process will not cause stress to the opposing party.

¶67 In sum, in light of the factors that are relevant here, we determine that the district court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

II. The TKS Parties’ Appeal

¶68 We now turn to the TKS parties’ appeal. The TKS parties first challenge the district court’s decision to treat their motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt. The TKS parties also challenge, for several reasons, the court’s decision not to hold Doug in criminal contempt. We address the TKS parties’ various arguments in turn.

A.        Whether the District Court Applied the Correct Standard for Contempt

¶69 The TKS parties assert that the district court erred by “applying the criminal standard” for contempt. We disagree.

¶70      Whether a contemplated contempt order is civil or criminal determines the standard of proof a court must apply to find that the elements of contempt have been met: for civil contempt, the standard is clear and convincing evidence; for criminal contempt, it is proof beyond a reasonable doubt. Koehler v. Allen, 2020 UT App 73, ¶ 14 & n.3, 466 P.3d 738. “The primary determinant of whether a particular contempt order is to be labeled civil or criminal is the trial court’s purpose in entering the order.” Von Hake v. Thomas, 759 P.2d 1162, 1168 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). “A criminal contempt order is punitive in nature, whereas a civil contempt order has a remedial purpose.” Koehler, 2020 UT App 73, ¶ 14 n.3. “A remedial purpose is indicated when the contemner is allowed to purge him- or herself of the contempt by complying with the court’s orders.” Von Hake, 759 P.2d at 1168. Accordingly, “a contempt order is criminal if the fine or sentence imposed is fixed and unconditional, but [it] is civil if the fine or imprisonment is conditional such that the contemner can obtain relief from the contempt order merely by doing some act as ordered by the court.” Id. at 1168 n.5. For example, in the stalking injunction context, this court has found a contempt order civil when its sanctions included “a jail term of 10 days and a fine of $300” because “these sanctions were stayed to allow [the contemner] an opportunity to purge his contempt . . . by having no further contact . . . with [the protected party] for a period of two years.” Koehler, 2020 UT App 73, ¶ 14 n.3 (cleaned up).

¶71 The district court determined that the contemplated contempt order in this case was criminal, explaining:

Because Doug Wilson has substantially complied with the [Stalking Injunction], were the court to sanction Doug Wilson, the [principal] reason would be to vindicate the court’s authority, rather than to compel future compliance. Because the court’s primary purpose would be punitive in nature, the criminal standard of proof beyond a reason[able] doubt applies to the proceeding.

This determination was not an abuse of discretion.

¶72 First, the TKS parties did not indicate in their motion for contempt that they were seeking a civil contempt adjudication. Their motion asked the court to “impose a fine and/or incarceration,” without any mention of giving Doug an opportunity to purge his contempt. That the relief the TKS parties requested was not conditional suggests that the contempt they sought was not civil. See id. (“Because this order was conditional such that [the contemner] could obtain relief by staying away from [the protected party], the contempt order is not criminal but civil.”).

¶73 Moreover, regardless of what the TKS parties requested, the court gave sound reasons for its application of the criminal standard. Its finding that Doug had “substantially complied” with the terms of the Stalking Injunction—a finding that the TKS parties do not challenge on appeal—supports the court’s determination that the chief reason for it to hold Doug in contempt “would be to vindicate the court’s authority, rather than to compel future compliance.” This finding supports the court’s determination that a contempt sanction in this case would be “punitive in nature.” The court employed the correct standard in approaching this issue, and it provided sound reasoning for its determination that the proceeding was criminal in nature. Thus, the court did not abuse its discretion related to this issue.

B.        Whether the District Court Erred in Not Holding Doug in Contempt

¶74      The TKS parties next challenge the district court’s decision, even under the criminal standard, not to hold Doug in contempt. Relatedly, the TKS parties also assert that the court abused its discretion by excluding certain evidence during the contempt hearing. The TKS parties’ motion for contempt sanctions was based on two sets of alleged violations of the Stalking Injunction: Doug’s communications with Prior Customer and Doug’s Facebook post and related comments. We first review the court’s determination that Doug’s communications with Prior Customer did not satisfy the elements of contempt. We then review the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt. We address the evidentiary issue as part of our review of the court’s determination that Doug’s Facebook post did not satisfy the elements of contempt.

1.         Doug’s Communications with Prior Customer

¶75 The TKS parties identified Doug’s communications with Prior Customer as violative of the Stalking Injunction’s No Contact Order. “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court found that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally failed to comply with the Stalking Injunction. The TKS parties challenge that finding. We determine that this finding is not clearly erroneous and, therefore, that Doug’s communications with Prior Customer cannot be a basis for holding Doug in contempt.

¶76 The Stalking Injunction’s No Contact Order stated that “Doug must not contact, phone, text, mail, email, or communicate . . . either directly or indirectly in any way with . . . [a]ny customer of TKS.” While there was evidence that Doug spoke with and emailed Prior Customer, who had at some point been a customer of TKS, the district court was also presented with evidence that Prior Customer had been the one to initiate contact with Doug and that when he had initiated contact, Doug told him, “[I]f you’re a TKS customer, I can’t talk to you . . . .” The court also received evidence that Doug subsequently sent Prior Customer an email asking for the last date on which he had done business with TKS. Prior Customer responded by saying he was not a current TKS customer but that he had purchased some products from TKS a few months earlier. The court found that “the content” of Doug’s communications with Prior Customer raised “a reasonable doubt as to whether Doug intentionally violated the order by sending those messages or whether he merely attempted to comply with the order, by obtaining written confirmation that [Prior Customer] was not a current customer, after [Prior Customer] initiated contact with Doug.”

¶77      The TKS parties acknowledge that if Prior Customer was the one who initiated contact with Doug, “it is unclear how Doug could have handled [the situation] differently” and that when Doug subsequently emailed Prior Customer, Doug “was apparently trying to determine whether [he] was a ‘current’ customer or a prospective customer.” Yet the TKS parties appear to argue that because Doug’s email asking Prior Customer “how long he had been working with TKS” was sent three days after Doug was served with the motion for contempt sanctions, the email must have amounted to an intentional failure by Doug to comply with the Stalking Injunction. Specifically, they apparently contend that because “Doug knew Troy considered his communications with [Prior Customer] to be a violation of the Stalking Injunction” yet “reached out to him anyway,” it was clear error for the court not to find that Doug intentionally violated the No Contact Order when he emailed Prior Customer. We are not convinced.

¶78      Nothing in the record suggests that Doug trusted Troy or the assertions of Troy’s counsel. Accordingly, the fact that Doug learned that Troy and Troy’s counsel considered communications with Prior Customer to be a violation of the Stalking Injunction does not definitively establish that Doug intentionally violated the Stalking Injunction by inquiring of Prior Customer himself whether he was a current customer of TKS, especially where he told Doug that he was not a current customer. Given the evidence that Doug repeatedly told Prior Customer that Doug could not speak with him if he was a TKS customer and the evidence that Doug’s email to Prior Customer was merely to confirm whether he was a current customer, we see no clear error in the district court’s finding that the TKS parties failed to prove beyond a reasonable doubt that by communicating with Prior Customer Doug intentionally violated the Stalking Injunction. That alleged violation of the Stalking Injunction cannot serve as a basis for holding Doug in contempt.

2.         Doug’s Facebook Post and Related Comments

¶79      We now consider the TKS parties’ challenge to the court’s determination that Doug’s Facebook post and related comments did not satisfy the elements of contempt. While the Stalking Injunction was in place, Doug made a series of communications on Facebook. The full text of those communications is quoted above. See infra ¶ 18. We address, in turn, the district court’s determination that these communications did not violate the No Contact Order and its determination that they did not violate the Personal Conduct Order.

a.         Whether Doug’s Facebook Post and Comments Violated the No Contact Order

¶80      The Stalking Injunction’s No Contact Order forbade Doug from communicating with Troy, even indirectly. For the district court to impose contempt sanctions based on the allegation that the Facebook communications violated the No Contact Order, the TKS parties had to prove beyond a reasonable doubt that, among other things, Doug intended the Facebook post and comments to be a direct or indirect communication with Troy or that he knew they were a direct or indirect communication with Troy. See Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991). The district court determined that it could not find beyond a reasonable doubt that the Facebook post was an intentional or knowing violation of the No Contact Order, and we see no clear error in that finding.

¶81      On this point, the court reasoned that “because Troy was not a Facebook friend of Doug and because the message [did] not reference Troy by name, a reasonable doubt exists as to whether Doug intended the message to reach Troy.” Indeed, there was evidence that Troy was not a Facebook friend with Doug, which does support a finding that the post was not a knowing or intentional attempt by Doug to communicate with Troy directly. And there is no evidence that any of Doug’s Facebook friends routinely shared Doug’s posts with Troy, which supports a finding that the post and related comments did not amount to a knowing or intentional attempt to communicate with Troy indirectly.

¶82 Admittedly, we have held in the context of a no-contact order that “a factfinder could readily infer that calls [an ex-husband] placed to [his ex-wife’s new husband] . . . would routinely and predictably be conveyed to [the ex-wife]” and, therefore, that by making those calls, the ex-husband “intentionally or knowingly” contacted his ex-wife at least indirectly. State v. Fowers, 2023 UT App 128, ¶ 13, 538 P.3d 1274 (cleaned up). Similarly, we have held that a factfinder could infer that an estranged husband intended to communicate with or contact his wife, who had obtained a protective order against him, by sending letters with language directed to his wife to the address of the wife’s “sister who lived next door.” State v. Fouse, 2014 UT App 29, ¶¶ 3, 41, 43, 319 P.3d 778, cert. denied, 329 P.3d 36 (Utah 2014). But in neither of those cases did we say that the evidence required a finding that the defendant knowingly or intentionally communicated indirectly with the protected person. See Fowers, 2023 UT App 128, ¶ 13; Fouse, 2014 UT App 29, ¶ 43. And we are unwilling here to hold that a person who is subject to an order not to contact his or her sibling indirectly necessarily violates that order any time he or she communicates about the sibling with any other family member or friend of the sibling.

¶83 In short, we affirm the district court’s determination that Doug’s Facebook post and related comments did not violate the No Contact Order.

b.         Whether Doug’s Facebook Post and Comments Violated the Personal Conduct Order

¶84 The TKS parties allege that Doug’s Facebook communications violated the Stalking Injunction’s Personal Conduct Order because he was thereby communicating “about” Troy. On this issue, Judge Harris’s opinion, joined in by Judge Orme, is the majority opinion; my views in this Part II.B.2.b constitute a dissenting opinion on this issue.

¶85 As to the allegation that Doug’s Facebook post and comments violated the Stalking Injunction’s Personal Conduct Order, I address each of the elements of contempt in turn. Again, those elements include that Doug “knew what was required [of him by the Personal Conduct Order], had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991).

(i) Whether Doug Knew What Was Required

¶86      The Personal Conduct Order said:

Doug is not to stalk Troy. This means that Doug must not do things such as follow, threaten, annoy, or harass Troy in a way that could cause a reasonable person to suffer emotional distress or to be afraid for the person’s safety or the safety of another person. For a legal definition of stalking, see Utah Code Ann. § 76-5-106.5.

The district court found that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order.” In making this finding, the court reasoned that while the Personal Conduct Order “contains a citation” to Utah Code section 76-5­106.5 “for the legal definition of stalking” and while “the statute contains a provision precluding an enjoined party from communicating ‘about’ the protected party,” the Stalking Injunction “does not contain that language, and no evidence exists in the record that Doug Wilson ever consulted the statute.” I believe this approach was erroneous.

¶87 The Personal Conduct Order prohibited Doug from stalking Troy. The supplied list of actions that constitute stalking was not exhaustive, as evidenced by the order’s use of “such as.” See State v. Green, 2023 UT 10, ¶ 70, 532 P.3d 930 (explaining that a rule’s “use of ‘such as’ indicates that the list” following that phrase is “illustrative and not exclusive” (cleaned up)); State v. Verde, 2012 UT 60, ¶¶ 14–15, 296 P.3d 673 (discussing a list following “such as” as “illustrative and not exclusive”), abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Thus, the fact that communicating about Troy was not among the listed examples of stalking is not dispositive.

¶88      Furthermore, the Personal Conduct Order unambiguously stated that the legal definition of stalking could be found in Utah Code section 76-5-106.5. I have some doubt as to whether Doug could successfully claim ignorance on the meaning of stalking even if the stalking statute had not been explicitly cited in the Personal Conduct Order, because “citizens are generally presumed to know what the law is.” Laker v. Caras, 2023 UT App 125, ¶ 21, 538 P.3d 926. At any rate, however, Doug’s argument that he only knew of the listed examples of stalking and not the full definition of stalking is unavailing given that he was plainly forbidden from stalking and told where to find the definition of that term. Cf. State v. Barlow, 153 P.2d 647, 653 (Utah 1944) (“Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law.”). I reject the district court’s position that a person subject to a court order not to engage in certain conduct does not know what is required if the person elects not to read a statute that defines the forbidden conduct that is expressly identified in the order. Accordingly, I would vacate the district court’s finding that “no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order],” remand the case, and instruct that the court make a new finding on this issue.

(ii) Whether Doug Was Able to Comply

¶89      As the TKS parties point out, the district court did not make a finding regarding Doug’s ability to comply with the Personal Conduct Order’s restriction against communicating about Troy. However, while it is true that a “district court must make explicit findings, whether written or transcribed, on the three elements of contempt,” Koehler v. Allen, 2020 UT App 73, ¶ 14, 466 P.3d 738 (cleaned up), I would find the lack of an explicit finding on this element to be harmless, see generally Green, 2023 UT 10, ¶ 101 (“[W]hen an error is harmless, we do not disturb the district court’s decision.”). Because there is simply no evidence to suggest that Doug would have been unable to refrain from posting about Troy on Facebook, the only supportable finding on this point is that Doug could have complied with the Personal Conduct Order.

(iii) Whether Doug Intended Noncompliance

¶90 On the element of whether Doug knowingly or intentionally violated the Personal Conduct Order, the district court found that “because no evidence exists [that] Doug knew speaking indirectly about Troy would violate the order, a reasonable doubt exists as to whether Doug intended the [Facebook post and related comments] to violate[] the order.” I have already expressed my view that the court’s finding of no evidence that Doug knew communicating about Troy would violate the Personal Conduct Order was the product of legal error. See supra ¶¶ 86‒88. Because I would have thus vacated this basis for the court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments, I would vacate the court’s finding on this point as well.

¶91 Doug contends that there is evidence apart from his professed ignorance of the restrictions imposed by the Personal Conduct Order that supports a finding that he did not knowingly or intentionally violate that order with his Facebook communications. Specifically, he asserts that the post and comments were not knowingly or intentionally “about” Troy but, instead, “only about” Sister. I am skeptical on this point. While the Facebook post and comments may have been, in part, about Sister, that does not necessarily mean they were not also about Troy. They refer to the lawsuit and the request for the Stalking Injunction, neither of which was filed by Sister. Additionally, the Facebook post declares, “I have . . . [h]ad family members try to hurt me to the point to drive me to take my life.” And Doug’s suicide note stated: “I feel like there is no other way out of where Troy has put me. I do not have the will or strength to fight.” Doug explicitly blamed Troy for his suicidal thoughts, so I am doubtful that his Facebook reference to the “family members” who prompted such thoughts was not intended to be about Troy. For these reasons, I do not believe that we can say that the evidence supported only the district court’s finding that Doug did not knowingly or intentionally violate the Personal Conduct Order through his Facebook post and related comments. I would instruct the court to make a new finding on this issue on remand as well.

¶92      In the context of stalking, this third element of contempt—that the stalker intentionally failed or refused to comply with the court’s order, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988), superseded on other grounds as recognized in State v. Hurst, 821 P.2d 467 (Utah Ct. App. 1991)—required the TKS parties to also prove that, to the extent the Facebook post and comments were about Troy, the communications would have caused “emotional distress to a reasonable person in [Troy’s] circumstances,”[11] Baird v. Baird, 2014 UT 08, ¶ 25, 322 P.3d 728; see also Utah Code § 76-5­106.5(2). The district court found that “a reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than an inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” I would conclude that the court’s approach that led to this finding suffered from a legal error and that the court exceeded its discretion when it excluded certain evidence related to this finding.

¶93 A determination of whether Doug’s Facebook post and comments would have caused emotional distress involves an “objective inquiry into whether [Doug’s] conduct would have caused a reasonable person in [Troy’s] circumstances emotional distress.” Baird, 2014 UT 08, ¶ 21. This objective inquiry is “an individualized objective” inquiry, “meaning that a court must consider the entire context surrounding the [alleged stalker’s] conduct,” Anderson v. Deem, 2023 UT App 48, ¶ 29, 530 P.3d 945 (cleaned up), including, as we have already noted, “such factors as the victim’s background, the victim’s knowledge of and relationship with the defendant, any history of abuse between the parties, the location of the alleged stalking, . . . the cumulative effect of the defendant’s repetitive conduct[, and] whether the behavior might cause damage to one’s reputation, relationships, or livelihood,” Richins v. Weldon, 2023 UT App 147, ¶ 67, 541 P.3d 274 (cleaned up); see also State v. Miller, 2023 UT 3, ¶¶ 84, 86, 527 P.3d 1087; Ragsdale v. Fishler, 2021 UT 29, ¶ 45, 491 P.3d 835; Baird, 2014 UT 08, ¶ 27. “In this context, acts that seem perfectly innocent or even well intentioned may constitute stalking. For example, conduct such as sending the victim a dozen roses may seem benign and loving to the casual observer, but could mean a very different thing when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). Moreover, courts “must consider the conduct cumulatively.” Id. (cleaned up).

¶94 At the outset of the contempt hearing, the district court expressly stated its view that “the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. As the majority opinion on this issue points out, the court thereafter did say that it would “take judicial notice of the [Stalking Injunction] and the findings that [the previous judge] made in relation to . . . issuing” it, and the court admittedly had before it evidence of many of the circumstances surrounding the controversy in general. However, after the court expressed its willingness to take judicial notice of the Stalking Injunction and the findings that the previous judge had made in relation to it, the court again affirmed its view that “the scope of [the contempt] proceeding” allowed it to consider only the “limited allegations of the order [to show cause],” not the circumstances surrounding the issuance of the Stalking Injunction in the first place. If we take the district court at its word—and I do—even if it took judicial notice of the findings that the previous judge made in relation to the Stalking Injunction, it did not consider those facts when ruling on the contempt motion.

¶95 A conclusion that the district court did not properly consider the entire context surrounding Doug’s conduct is further supported by an evidentiary ruling the court made at the contempt hearing. Specifically, the court limited testimony at the hearing to “testimony in regards to the allegations in the contempt proceeding.” While a judge who presides over both a stalking injunction hearing and a subsequent contempt hearing may not need to rehear evidence of the events leading to the stalking injunction to be able to fulfill its charge to consider the entire context surrounding the stalker’s conduct when deciding the contempt issue, in this case the same judge did not preside over both hearings. And because the first judge’s findings fell far short of telling the whole story of the parties’ history, the second judge’s willingness to take judicial notice of those findings was insufficient to demonstrate that it met its charge. For example, the TKS parties alleged various misdeeds by Doug that the first judge did not discuss when determining whether there was a course of conduct justifying issuance of the Stalking Injunction. See supra ¶¶ 9, 13–16. Accordingly, I believe the court abused its discretion by excluding from the contempt hearing evidence of the events surrounding the issuance of the Stalking Injunction on the basis that it was irrelevant to the contempt proceeding. And that abuse of discretion further confirms that the district court did not properly consider the entire context surrounding Doug’s conduct when it ruled on the contempt issue.

¶96 The majority opinion on this issue begins by correctly reciting “a few background concepts,” including the standard of review related to a district court’s factual findings and the burden of proof related to criminal contempt. Infra ¶¶ 103‒05. But as the majority opinion on this issue recognizes, those concepts come into play only if “a district court applies the correct legal standard.” Infra ¶ 103. And the correct legal standard was whether, considering the entire context, Doug’s Facebook post and comments would have caused a reasonable person in Troy’s position emotional distress. And, as explained, it is the district court’s repeatedly expressed intention not to consider the entire context that undergirds my opinion on this issue.

¶97      The majority opinion on this issue also states, alternatively, that, even assuming the district court did not consider the entire context surrounding Doug’s Facebook post and comments, no reasonable factfinder who had considered the entire factual context could conclude beyond a reasonable doubt that Doug’s Facebook post and comments were more than a “blip on the radar screen” and were capable of causing a person in Troy’s position emotional distress. Infra ¶¶ 107, 113. I disagree. As already noted, even the “seem[ingly] . . . innocent” or “well intentioned” “sending [of] . . . a dozen roses” might, in some circumstances, constitute a violation of a stalking injunction “when understood in the context of the victim’s experience.” Ragsdale, 2021 UT 29, ¶ 45 (cleaned up). In light of that, and given the established context of “division,” “escalated” tensions, and “great turmoil” into which the Facebook post and comments were placed, I am not prepared to hold as a matter of law that no reasonable factfinder considering the entire context could determine that the post and comments would cause an ordinary person in Troy’s position emotional distress.

¶98 For the foregoing reasons, I would vacate the court’s finding as to whether Doug’s Facebook post and comments would cause a reasonable person in Troy’s position emotional distress and direct that the court make a new finding on this issue as well.[12]

CONCLUSION

¶99      We have jurisdiction over Doug’s appeal. As to his appeal, the district court did not interpret or apply the stalking statute erroneously when it found a course of conduct directed at Troy. The court’s finding that Doug knew or should have known that his course of conduct would cause a reasonable person in Troy’s position emotional distress was not clearly erroneous. And the court did not abuse its discretion by dismissing the TKS parties’ tort claims without prejudice.

¶100 As to the TKS parties’ appeal, we unanimously affirm the district court’s determinations to apply the criminal standard in the contempt proceedings and to not hold Doug in contempt for communicating with Prior Customer. Additionally, based on Judge Harris’s opinion, joined by Judge Orme, we also affirm the district court’s determination to not hold Doug in contempt based on the allegation that his Facebook post and comments violated the No Contact Order.

HARRIS, Judge (concurring in part and authoring the Opinion of the Court as to Part II.B.2.b, in which ORME, J., joined):

¶101 Judge Orme and I join the first 83 paragraphs of the lead opinion without reservation. That is, we agree that this court has jurisdiction over Doug’s appeal—as a direct appeal and not as a cross-appeal—and that, on the merits of that appeal, the district court did not err in issuing the Stalking Injunction, nor did it abuse its discretion in dismissing the TKS parties’ tort claims without prejudice. We also agree that, with regard to the TKS parties’ appeal, the district court correctly treated the motion for contempt sanctions as a motion to hold Doug in criminal contempt rather than civil contempt, and we further agree that the court did not commit reversible error either (a) in finding that Doug’s communication with Prior Customer was not contemptuous or (b) in determining that Doug’s Facebook communications did not violate the No Contact Order. To that extent, we concur fully in the lead opinion.[13]

¶102 We disagree, however, with the lead opinion’s conclusion that the district court committed reversible error in determining that the TKS parties had not proved, beyond a reasonable doubt, that Doug’s Facebook communications violated the Personal Conduct Order. In particular, we take issue with the lead opinion’s assessment regarding the emotional distress component of the analysis. On that score, we agree wholeheartedly with the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” On that basis, we affirm the judgments of the district court in their entirety, a result that will bring this case to a well-deserved conclusion and present no need for further proceedings on remand.

¶103 Let us begin with a few background concepts, starting with the applicable standard of review. Assuming that a district court applies the correct legal standard—an “individualized objective standard,” see Baird v. Baird, 2014 UT 08, ¶ 26, 322 P.3d 728—its determination regarding whether a claimant suffered the sort of emotional distress the stalking statute contemplates is a factual finding that we review only for clear error. See Richins v. Weldon, 2023 UT App 147, ¶ 42, 541 P.3d 274 (reviewing an emotional distress finding, in this context, “for clear error” (cleaned up)). In this case, the district court applied the correct standard, expressly asking whether “a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person,” suffered emotional distress. Accordingly, the court’s ultimate finding regarding emotional distress is, in this case, a determination we review only for clear error.

¶104 Moreover, the overarching standard of review generally applicable in contempt cases is quite deferential. Indeed, the lead opinion, supra ¶ 36, acknowledges that—regardless of whether the case involves civil or criminal contempt—a district court’s “decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Anderson v. Thompson, 2008 UT App 3, ¶ 11, 176 P.3d 464 (cleaned up).

¶105 We also note that the TKS parties were seeking criminal contempt, not civil contempt, and therefore they were required to prove Doug’s contempt beyond any reasonable doubt. See supra ¶¶ 69–73. This is the most stringent burden of proof found in the law, and the district court recognized this concept in its ruling.

¶106 Furthermore, the type of emotional distress at issue here is something far greater than mere annoyance. Utah’s stalking statute—incorporated into the Personal Conduct Order—defines “[e]motional distress” to mean “significant mental or psychological suffering.” Utah Code § 76-5-106.5(1)(a)(ii)(A) (2021). This court has previously noted that this definition requires claimants to demonstrate that they have suffered more than just “some emotional distress.” See Noel v. James, 2022 UT App 33, ¶ 20, 507 P.3d 832; see also Meyer v. Aposhian, 2016 UT App 47, ¶ 16, 369 P.3d 1284 (affirming a district court’s determination that the incidents in question, while “upsetting, intimidating, and annoying,” were not sufficient to cause the sort of emotional distress contemplated by the stalking statute).

¶107 With these foundational principles in mind, we see no error at all—let alone a clear one—in the district court’s determination that “reasonable doubt exists as to whether a reasonable person in Troy Wilson’s position, rather than any inordinately sensitive person, would suffer emotional distress because of that singular Facebook post.” In the grand scheme of this family’s lengthy dispute, this Facebook post was merely a blip on the radar screen, and the district court was well within its contempt-case discretion to determine that the TKS parties hadn’t proved, beyond a reasonable doubt, that—of all things in this case’s history—it was these rather innocuous Facebook communications that tipped Troy over the emotional edge into “significant mental or psychological suffering.”

¶108 The lead opinion’s inclination to reverse and remand on this point appears largely driven by the district court’s (perhaps somewhat ill-considered) remarks that “any of the facts that gave rise to” the Stalking Injunction were “beyond the scope” of the contempt proceeding. In our view, one reasonable reading of the court’s remarks is simply that it did not want to unduly elongate the evidentiary hearing by having witnesses come in and rehash the same testimony they’d given under oath some nine months earlier. Indeed, at one point the court referred to its request—made previous to the contempt hearing—that “the parties . . . provide declarations of any witnesses,” and it stated that it had made that request in an attempt “to avoid going back to other proceedings and trying to listen to the” audio recording of the previous hearing. Nevertheless, the lead opinion has decided to “take the district court at its word” and assume that, because of these remarks, the court “did not properly consider the entire context surrounding” Doug’s Facebook communications. See supra ¶¶ 94–95.

¶109 Our reading of the record is different from the lead opinion’s. As we see it, the district court actually did consider the entire context of the case in making its contempt ruling, even if it refused to allow additional testimony and evidence to be re­presented at the hearing. At the contempt hearing, during the debate over the scope of the witnesses’ testimony, the court noted that “there is a record with regard to” what had happened at the previous hearing that could be reviewed and consulted. The court then expressly took “judicial notice of the fact that there were prior proceedings” and “judicial notice of the [Stalking Injunction] and the findings” the prior judge made in entering it. Our reading of this exchange is that the court was not just taking judicial notice of the Stalking Injunction and related findings made by the previous judge, but of the “record with regard to” the previous hearing. Indeed, in its contempt order, the district court expressly stated that it had considered “the circumstances surrounding the case at bar” that had “created great turmoil in the extended Wilson family.”

¶110 Moreover, during that same debate, Troy’s counsel noted that Troy had submitted a lengthy declaration in advance of the contempt hearing, with the intent of informing the court about “what [Troy] had experienced prior to” the entry of the Stalking Injunction. That declaration was just one of many exhibits submitted by the parties with their briefing in advance of the contempt hearing; that briefing, including the exhibits, contained a whole lot of context and descriptions of past underlying events. Unless this court is aware of some indication to the contrary, it should presume that lower courts read the relevant briefing, including the submitted exhibits, before rendering a decision. See, e.g.Merrick Young Inc. v. Wal-Mart Real Estate Bus. Trust, 2011 UT App 164, ¶ 29, 257 P.3d 1031 (noting the lower court’s statement that it had “fully reviewed this matter” before making its ruling, and “presum[ing]” therefrom that the court “closely examined all of the documents filed in support of the parties’” positions). Here, the district court stated, at the hearing, that it had “received and reviewed all the declarations” submitted by the TKS parties, and it indicated in its final written ruling that it “took evidence and received briefing from the parties” and that it was “fully advised in the premises” before making its ruling. We therefore presume that the district court read all the material Troy submitted in support of his motion.

¶111 In addition, at the contempt hearing, the court heard live testimony not only from Troy but also from several other witnesses, including at least four other members of the family. Two of those witnesses—Troy and his sister—offered testimony about Troy’s reaction to Doug’s Facebook communications.

¶112 In our view, it is nigh on impossible to read the file in this case well enough to be able to rule on a contempt motion and not be fully aware of the circumstances surrounding the controversy in general and the Facebook communications in particular. Here, the district court not only read the file but then presided over an evidentiary hearing at which live testimony was presented and these matters were further discussed. We therefore reach a different conclusion than the lead opinion; as we see it, the district court considered all the relevant contextual circumstances before concluding that the TKS parties had not met their burden of proving that Troy had suffered emotional distress.

¶113 But be all of that as it may, even if we were to assume for purposes of the discussion that the district court truly did not consider the entire context surrounding Doug’s Facebook communications, the parties have—in this appeal—provided this court with all of that context, through briefing and citations to the record, and we have certainly considered that contextual evidence. After undertaking that consideration, we are of the view that—to the extent the district court actually failed to consider the underlying circumstances—any error on the part of the court here was harmless. In our view, no reasonable factfinder, after considering the contextual evidence to which the TKS parties now point, could conclude beyond a reasonable doubt that Doug’s “John Dough” Facebook posts caused a reasonable person in Troy’s position to suffer the sort of significant emotional distress contemplated by the stalking statute.

¶114 Accordingly, for all these reasons, we part ways with the lead opinion’s analysis in paragraphs 90 through 98. On this record, reasonable doubt exists as to whether a reasonable person in Troy’s shoes would have sustained significant mental or psychological suffering from Doug’s Facebook posts. The district court’s contempt ruling was sound, and we therefore affirm it. Because we agree with the lead opinion’s analysis affirming the court in all other respects, the court’s rulings are affirmed across the board.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] See Utah R. Jud. Admin. 14-807 (governing law student practice in the courts of Utah).

[2] Because the parties share a surname, we use their given names, with no disrespect intended by the apparent informality.

[3] As explained in more detail below, although Doug’s appeal has been designated as a cross-appeal for ease of reference, the two appeals in this matter are separate and distinct appeals. See infra note 5.

[4] The stalking statute was amended after the events relevant to this appeal. Compare Utah Code § 76-5-106.5 (2020), with id. (2024). Because the changes to the relevant text are mostly minor and do not affect our analysis, we cite the current version of the statute except where the text has materially changed. See infra note 9.

[5] We are not unaware of rule 4(d) of the Utah Rules of Appellate Procedure, which states that “[i]f a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days after the date on which the first notice of appeal was filed.” If rule 4(d) applied here, Doug would have had fourteen days from the date the TKS parties filed their notice of appeal to file his notice of appeal, and Doug in fact did file his notice of appeal within fourteen days of when the TKS parties filed theirs. But rule 4(d) does not apply here. This matter involves both the TKS parties’ original lawsuit and a subsequent criminal contempt proceeding, see infra ¶¶ 69‒73 (concluding that the district court did not abuse its discretion in classifying the contempt proceeding as criminal), and a criminal contempt proceeding is an action “separate and apart from the [principal] action,” Robinson v. City Court, 185 P.2d 256, 258 (Utah 1947). Because the original lawsuit and the contempt proceeding are separate actions, the appeal deadlines for those separate actions operate independently. See Burgers v. Maiben, 652 P.2d 1320, 1322 (Utah 1982) (per curiam) (holding that a notice of appeal that was untimely to perfect an appeal from the original action was timely and conferred appellate jurisdiction to review a related criminal contempt proceeding). Thus, notwithstanding that they have been designated cross-appeals for ease of reference and share a common appellate case number, the two appeals in this matter are separate, and the deadline for Doug to perfect his appeal from the TKS parties’ original lawsuit was thirty days after entry of the final judgment in that lawsuit, see Utah R. App. P. 4(a).

[6] Our supreme court has said that In re Cendant Corp., 454 F.3d 235 (3d Cir. 2006), “provides a helpful description of what a proper separate judgment should look like.” Griffin v. Snow Christensen & Martineau, 2020 UT 33, ¶ 21, 467 P.3d 833.

[7] We understand this to be Doug’s argument because the Stalking Injunction was entered in favor of Troy and not in favor of TKS. Because the Stalking Injunction was not entered in favor of TKS, this case cannot implicate or resolve the issue of whether a stalking injunction may be issued in favor of a company. With our supreme court, “we note that at least one court has found its state’s civil stalking statute to ‘protect[] institutions as well as people.’” Ragsdale v. Fishler, 2021 UT 29, ¶ 39 n.29, 491 P.3d 835 (quoting Board of Regents-UW System v. Decker, 2014 WI 68, ¶ 26, 850 N.W.2d 112 (alteration in original)). But again, this case does not raise that issue, and we, like the supreme court before us, do not address it. See id.

[8] We see in the record no explicit finding that Doug knew or should have known that his course of conduct would cause a reasonable person to suffer emotional distress. Generally, however, “unstated findings can be implied if it is reasonable to assume that the trial court actually considered the controverted evidence and necessarily made a finding to resolve the controversy, but simply failed to record the factual determination it made.” Uhrhahn Constr. & Design, Inc. v. Hopkins, 2008 UT App 41, ¶ 23, 179 P.3d 808 (cleaned up). And here, the necessary finding regarding emotional distress is implicit in the court’s statement that “although [the course of conduct] was aimed at the company, [it] was aimed at the company in a particularly harmful way and . . . satisfies the requirements of the stalking [statute].” At a minimum, Doug makes no argument to the contrary.

[9] In contrast, the current version of the code requires a finding that the actor “[knew] or [wasreckless as to whether the course of conduct would cause a reasonable person . . . to fear for the individual’s own safety or the safety of a third individual” or “to suffer other emotional distress.” Utah Code § 76-5-106.5(2)(a) (emphasis added).

[10] While we have concluded that the district court correctly interpreted the stalking statute and that its findings here are supported by the evidence, courts should remain cautious about allowing civil stalking injunctions to be used as tools in commercial litigation.

[11] The TKS parties do not argue that the Facebook post and comments would have caused a reasonable person in Troy’s position to fear for his or her safety or the safety of a third person.

[12] The TKS parties also contend that “[t]he district court erred in categorically finding that ‘all of the witnesses from [the] Wilson family possess such significant biases that the court cannot credit any of their testimony beyond a reasonable doubt.’” However, “the factfinder serves as the exclusive judge of both the credibility of witnesses and the weight to be given particular evidence.” State v. Jok, 2021 UT 35, ¶ 28, 493 P.3d 665 (cleaned up). This includes when the trial court is the factfinder. See In re J.R.H., 2020 UT App 155, ¶ 17, 478 P.3d 56 (“Trial courts . . . have wide latitude to make credibility determinations, and we defer to such determinations . . . .”). Hence, I believe the TKS parties have not demonstrated error on this point.

[13] Moreover, we take no issue with the lead opinion’s analysis in paragraphs 86 through 88, in which the lead opinion expresses a desire to “vacate the district court’s finding that ‘no evidence exists [that] Doug knew speaking indirectly about Troy would violate the [Personal Conduct Order].’” But our affirmance of the court’s emotional distress determination is, by itself, sufficient to conclude our analysis on the overarching question of whether Doug’s Facebook communications violated the Personal Conduct Order; thus, Judge Orme and I do not need to specifically assess the other elements contained in Part II.B.2.b of the lead opinion.

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Why All Communications with Your Former Spouse Should be in Writing By Braxton Mounteer, Legal Assistant.

Even if you trust your former spouse to deal with you honestly and in good faith in any matter pertaining to your divorce, why should you communicate in writing with your ex?
Writing down or recapping your conversations in writing (text and/or email) with your spouse creates a verifiable record. If you later present this to your spouse refer back to the record and avoid confusion, refute false claims, and prove real claims.
So if your ex tries to claim you didn’t give him or her notice of the day, time, and place for Timmy’s baseball game, referring back to that text message or email message will vindicate you. If you need to prove you made a timely request for reimbursement for a child health care or daycare expense, written record is essential.
If there is no record, the event or the claim might as well never have existed. If you can’t prove it exists, it doesn’t in the world of law. Phone calls do not exist. Well, to be fair, you may be able to prove a phone call to place, but not what was discussed during the call. Likewise with in-person communications. All the other person would have to do is to claim that the conversation didn’t happen and then it is your word against another’s. To avoid that, create a written record.
Your former spouse may try to get you to discuss (or worse, to agree to) something “off the record,” as it were, and then use that opportunity to take advantage of you. Avoid the hassle; get it in writing.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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McKell v. McKell – 2024 UT App 72 – tolling of statute of limitations

McKell v. McKell – 2024 UT App 72
THE UTAH COURT OF APPEALS

SUMMER TATIANA MCKELL AND MICHELLE TISCHNER, Appellants, v. ROBERT C. MCKELL, Appellee.

Opinion No. 20220315-CA Filed May 9, 2024 Fourth District Court, Provo Department

The Honorable M. James Brady No. 210400528

Christopher M. Ault and Chad A. Tengler, Attorneys for Appellants Barry N. Johnson, James K. Tracy, J. Jacob Gorringe, and Bradley C. Johnson, Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.

LUTHY, Judge:

¶1        Summer Tatiana McKell, through her legal guardian Michelle Tischner, brought suit against Robert C. McKell, her adoptive father and former legal guardian, for claims related to sexual abuse he committed against her. Robert[1] moved to dismiss Summer’s claims on the ground that they were untimely under the relevant statute of limitations. Summer contended that the limitations period was statutorily tolled while she was incompetent, until the time of Tischner’s appointment as her guardian. Before the district court issued a decision on the motion, our supreme court issued an opinion clarifying that the relevant statute tolls limitations periods throughout a person’s incompetency, regardless of whether the person has an appointed guardian. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 24, 506 P.3d 509. However, neither party brought this decision to the district court’s attention, and the court dismissed Summer’s claims on the grounds that the limitations period was not tolled while she had guardians appointed and that the combined time of the guardianships exceeded the limitations period.

¶2        Summer appeals, arguing that the district court improperly dismissed her claims as time-barred. She asserts that, as Zilleruelo clarifies, the limitations period was statutorily tolled even when she had guardians. Robert contends that Summer did not preserve this argument and that she invited any error in the court’s ruling on timeliness. Alternatively, he asks us to affirm on the ground that Summer did not sufficiently plead incompetence. We reject Robert’s preservation argument, we conclude that Summer did not invite the error leading to the dismissal of her claims, and we determine that Summer sufficiently pled incompetence. Accordingly, we conclude that the district court erred in dismissing Summer’s claims, and we reverse.

BACKGROUND[2]

Summer’s Birth and Adoption

¶3        Summer was born in Russia in 1994 and was later brought to Utah by her adoptive mother (Mother). Summer purportedly suffered traumatic injuries at birth that caused “a variety of mental, emotional, and behavioral developmental disabilities, including cognitive impairment.” Mother married Robert in 2007, and Robert subsequently adopted Summer.

Summer’s Guardianships and Robert’s Criminal Charges

¶4        In January 2013, after Summer had turned eighteen, Mother and Robert petitioned to be jointly appointed as Summer’s limited guardians and conservators. They were appointed as such on February 15, 2013.

¶5        Soon after this appointment, Summer reported that Robert had sexually assaulted her on multiple occasions. Criminal charges were filed against Robert in April 2013. Robert and Mother resigned as Summer’s legal guardians and conservators on January 7, 2014.

¶6        Michelle Tischner, Summer’s sister, was appointed as Summer’s legal guardian on October 2, 2017. In November of that year, Robert pled guilty to four counts of sexual battery for his conduct toward Summer.

Summer’s Complaint and Robert’s Motion for Judgment on the Pleadings

¶7        On April 22, 2021, Summer, through Tischner, brought this suit against Robert. In her complaint, Summer alleged, among other things, that Robert had sexually assaulted her.

¶8        In his answer, Robert asserted as an affirmative defense that Summer’s claims were “barred by the applicable statutes of limitations.” Robert then filed a motion for judgment on the pleadings, contending that “[t]he four-year statute of limitations governing each of [Summer’s] claims [had] expired several years [previously].”

¶9        Summer opposed this motion, arguing that it “ignore[d] the tolling provisions of Utah law that apply to disabled and incapacitated victims like Summer” and that “[b]ecause the statutes of limitation were tolled until Ms. Tischner was appointed guardian, the action was timely filed.” Summer pointed to Utah Code section 78B-2-108 (the Tolling Statute), which provides, “During the time that an individual is underage or mentally incompetent, the statute of limitations for a cause of action other than for the recovery of real property may not run.” Utah Code § 78B-2-108(2). Summer stated that “[t]he statute of limitations on [her] claims was tolled until the appointment of her guardian” and that “her claims were timely filed within the applicable statutes of limitation” because she “brought this action within four years of” the appointment of Tischner and “the curing of her legal incapacity.”

¶10 Robert replied that Summer’s complaint did not adequately plead incompetence and that even if it did, Summer’s incompetence was cured more than four years prior when Mother became Summer’s guardian and conservator.

Summer’s Amended Complaint and Robert’s Motion to Dismiss

¶11 Summer then sought and obtained leave to amend her complaint. Her amended complaint stated that “Robert signed and filed a ‘Verified Consent to Conservatorship’ wherein he affirmed that . . . ‘Summer suffers from a disability that has impeded her ability to progress mentally and intellectually, and on information and belief, has only attained the intellectual age of approximately 12 years, though she is 18 years old.’” It asserted that “Robert and [Mother’s] 2013 limited guardianship is void ab initio due to fraud upon the court in prosecuting the petition, bad faith, violating public policy against using court-appointed guardianship to accomplish unlawful ends, failing to discharge obligations or responsibilities, etc.” Additionally, it declared that “Summer remained under a disability and was therefore legally incompetent until the appointment of her current limited guardian.”

¶12 Robert filed a motion to dismiss Summer’s amended complaint. He again argued that Summer’s claims were time-barred because “she had a legal guardian in place for well over four years before asserting her sexual assault claims.”

¶13 Summer opposed Robert’s motion. She reiterated her position that she was incompetent until Tischner’s appointment as guardian, and she stated that “at that point the statute of limitations began to run.”

¶14 Robert replied by explaining that his calculations as to timeliness included Mother’s time as Summer’s guardian such that “between [Mother’s] and Tischner’s guardianships combined, Summer waited too long to assert her sex abuse claims.”

Zilleruelo v. Commodity Transporters, Inc.

¶15      In January 2022, our supreme court issued an opinion in Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509, interpreting the Tolling Statute. Therein, the court provided the following analysis:

The Tolling Statute has two relevant subsections. The first prohibits a mentally incompetent individual from initiating a claim without a legal guardian. With this language— “without a legal guardian”—the Legislature has decreed that a mentally incompetent person cannot bring suit unless that person has a legal guardian.

The second subsection speaks to a different question. It guarantees that a statute of limitations will not run against a mentally incompetent individual during the time that the individual is mentally incompetent. However, the Legislature omitted the language “without a legal guardian” from the second subsection. . . . We presume omissions to be purposeful.

Taking note of this omission and deeming it purposeful, the language of the Tolling Statute is plain. A statute of limitations is tolled during a person’s mental incompetency, whether or not that person has a legal guardian.

[The appellee] argues for a reading of the Tolling Statute where the second subsection would parallel the first. In other words, [the appellee] wants us to read the Tolling Statute to provide: “During the time that an individual is underage, or mentally incompetent and without a legal guardian, the statute of limitations for a cause of action other than for the recovery of real property may not run.” Without a doubt, the Legislature could have written the Tolling Statute in this way. But also without a doubt, it did not. And it is not our job to second guess the Legislature and insert substantive terms into the statute’s text.

Simply stated, the Tolling Statute provides that the statute of limitations is tolled while a person is mentally incompetent, whether or not that person is represented by a legal guardian.

Id. ¶¶ 20–24 (cleaned up). Neither party brought Zilleruelo to the district court’s attention.

Oral Argument and the Ruling on Robert’s Motion to Dismiss

¶16      In February 2022, the district court heard oral argument on Robert’s motion to dismiss. During this hearing, Summer’s position remained consistent with her earlier statements regarding the effect of her incompetency to toll the statute of limitations until the time of Tischner’s guardianship. Summer’s counsel stated that “a person does gain competency when there is a guardian that is appointed” and that Summer’s “incapacity was cured by the appointment of Michelle Tischner as her guardian.” Again, neither party raised Zilleruelo at the hearing or in subsequent briefing to the district court.

¶17 In March 2022, the district court granted Robert’s motion and dismissed Summer’s claims. The court noted that Robert had argued “that the standard for legal incompetency is different than the standard for a disability that would apply to the appointment of a guardian,” but the court did not “rule on the parties’ argument regarding the differences between competency and disability” because it reasoned that “even assuming that [Summer was] correct that her incapacitation was sufficient to deem her mentally incompetent and that it triggered the tolling of the statute of limitations, the appointment of guardians for her removed the tolling while she had guardians appointed.” The court calculated that between Mother and Tischner, Summer “had guardians appointed for a total of four years and 133 days after the alleged sexual assault and before she filed the present lawsuit.” Accordingly, the court concluded that Summer’s “causes of action [were] barred by the statute of limitations” and dismissed them. Summer now appeals.

ISSUE AND STANDARD OF REVIEW

¶18 Summer argues that the district court erroneously dismissed her claims as time-barred because the Tolling Statute renders them timely. “Because a trial court’s grant or denial of a motion to dismiss is a question of law, the standard of review is correctness.” State v. Arguelles, 2020 UT App 112, ¶ 6, 473 P.3d 170 (cleaned up).

ANALYSIS

¶19      Summer asserts that the district court “err[ed] as a matter of law in holding that statutes of limitation for an incompetent person’s claims . . . begin to run upon the judicial appointment of a legal guardian.” She argues that our supreme court’s opinion in Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509, demands the conclusion that the statute of limitations has been tolled throughout the duration of Summer’s alleged ongoing incompetence—regardless of guardianship status—such that her claims were timely. We agree that Zilleruelo does demand that conclusion. The holding in Zilleruelo clearly establishes that if Summer was incompetent, her claims were not time-barred because the relevant statute of limitations was tolled under the Tolling Statute for the duration of Summer’s incompetency, regardless of guardianship status. See id. ¶ 24.

¶20 Robert responds not by asserting that the court’s legal conclusion on tolling during incompetency or its application of the Tolling Statute were correct but, rather, by contending that Summer’s argument on appeal is unavailing because she did not preserve it or argue an exception to preservation and because she invited any error on this point. Robert additionally asserts that we should affirm on the alternative ground that Summer did not sufficiently plead incompetence. We address these contentions in turn.

  1. Preservation

¶21 Robert contends that we should not consider Summer’s appeal because Summer failed to preserve the issue of whether “statutes of limitation for an incompetent person’s claims . . . begin to run upon the judicial appointment of a legal guardian.” (Omission in original.) In support of this argument, Robert points to caselaw establishing that Utah appellate courts “view issues narrowly” and “recognize that an appellant raises a new issue when the appellant raises a legal theory entirely distinct from the legal theory the appellant raised to the district court.” Ahhmigo, LLC v. Synergy Co. of Utah, 2022 UT 4, ¶ 18, 506 P.3d 536 (cleaned up).

¶22 We first note that the issue of the impact of the Tolling Statute was before the district court. Robert raised the issue of whether Summer’s claims were time-barred in his answer and motion for judgment on the pleadings, and Summer responded by quoting the Tolling Statute and arguing that it rendered her claims timely. Whether we define the issue broadly as the timeliness of Summer’s claims or more narrowly as the effect of the Tolling Statute on the timeliness of Summer’s claims given her guardianships, these issues were preserved.[3] Either issue was “presented to the trial court in such a way that the trial court ha[d] an opportunity to rule on that issue.” 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (cleaned up). That Summer agreed to an interpretation of the Tolling Statute that was legally incorrect does not change the reality that the court was presented with and ruled on these issues. See Cottam v. IHC Health Services, Inc., 2024 UT App 19, ¶ 18 n.2, 544 P.3d 1051 (“The court was not required to hold the [defendants] to their apparent legal concession; it was required to reach its own conclusion on the [legal question presented].”). And once an issue has been raised in the trial court, “new arguments” as to that issue, including “citing new authority or cases supporting an issue that was properly preserved,” “do not require an exception to preservation.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443. What Summer has done on appeal is to cite a new case—namely, Zilleruelo—in support of an issue that was properly preserved— namely, the timeliness of her claims in light of the Tolling Statute and her guardianships.

¶23      We recognize that, as Robert asserts, Summer is relying on appeal on a Tolling Statute theory—that the Tolling Statute tolls the running of the statute of limitations during all of her incompetency, regardless of whether she has a guardian—that is distinguishable from the Tolling Statute theory she relied on below—that the Tolling Statute tolls the running of the statute of limitations for periods during which she was incompetent and without a guardian and that Mother should not be deemed to have been her guardian. However, based on the same considerations that guided our supreme court’s decision in Patterson v. Patterson, 2011 UT 68, 266 P.3d 828, we decline to characterize these as entirely distinct legal theories for preservation purposes.

¶24 In Patterson, the defendant had asserted below that an existing Utah Supreme Court opinion that arguably controlled the key issue in the case should be either distinguished or overruled. See id. ¶ 4. The defendant had failed to bring to the district court’s attention the fact that legislation subsequent to the relevant supreme court opinion had overruled that opinion already. See id. ¶¶ 18, 20. The district court determined that the supreme court opinion at issue was controlling, and in reliance on that opinion, it granted partial summary judgment against the defendant. See id. ¶ 5.

¶25 On appeal, the defendant asked the supreme court to overrule its prior opinion or, alternatively, to apply the subsequently enacted statute, which the defendant newly argued had itself overruled the prior opinion already. See id. ¶ 8. The plaintiff responded by asserting that the prior opinion “remain[ed] good law and should not be overruled.” Id. He further contended that the subsequent statute had not overruled the prior opinion and that, in any event, the court should not consider the statutory argument because the defendant raised it for the first time on appeal. See id.

¶26 The supreme court began its analysis by considering whether the defendant was barred from arguing the applicability of the subsequent statute where he had not cited it in the district court. Id. ¶ 10. After explaining the “two primary considerations underlying the [preservation] rule”—“judicial economy and fairness”—the court concluded that the preservation rule did not prevent the defendant from raising on appeal what it deemed to be “controlling legislation.” Id. ¶¶ 15‒16, 18. Simply stated, where the statute was relevant to “a properly preserved issue,” the court was “unwilling to disregard controlling authority that [bore] upon the ultimate resolution of [the] case solely because the parties did not raise it below.” Id. ¶ 18.

¶27 The court acknowledged that its decision might “undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. Specifically, it said that judicial economy might not be served since the district court “may have ruled in [the defendant’s] favor and [the] appeal [may] have been avoided” if the defendant had raised the controlling authority in the district court. Id. And it explained that fairness was not being fully served since it was “not entirely fair to characterize the district court’s ruling as ‘error’ because it did not have the statute before it.” Id. But the court emphasized that there were “other important [policy] considerations that cut against application of the preservation rule in [that] situation.” Id. ¶ 20.

¶28      First, the court noted that consideration of the controlling statute was “necessary to a proper decision” and that “[a]s the state’s highest court, [it has] a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law.” Id. Second, the court observed that “the issue of whether and how” the statute applied was “one that [could] be resolved purely as a matter of law.” Id. Third, the court then pointed out that the defendant’s “failure to raise the argument below appear[ed] to have been inadvertent, rather than tactical, because [the court could] conceive of no way in which [the defendant] would [have] derive[d] an advantage from reserving the statutory argument for appeal rather than raising it in the district court.” Id. Finally, the court highlighted the parties’ “ethical obligation to disclose adverse authority to the court,” explaining, “[T]he failure to raise the controlling statute in the district court is a failure that can be appropriately assigned to counsel for both parties. Were we to refuse to apply the [controlling statute] here, it could incentivize attorneys to disregard their ethical obligation to point out controlling adverse authority.” Id.

¶29      Almost all of these important policy considerations that cut against application of the preservation rule in Patterson likewise cut against application of the preservation rule here. As an initial matter, where newly cited authority is relevant to a narrow, preserved issue, we, like the Patterson court, are “unwilling to disregard controlling authority that bears upon the ultimate resolution of [the] case solely because the parties did not raise it below.” Id. ¶ 18. Additionally, the impact of the Tolling Statute here “can be resolved purely as a matter of law.” Id. ¶ 20. Moreover, Summer’s “failure to raise the [Zilleruelo] argument below appears to have been inadvertent, rather than tactical, because we can conceive of no way in which [Summer] would derive an advantage from reserving [this] argument for appeal rather than raising it in the district court.” Id. Finally, because both parties had “an ethical obligation to disclose adverse authority to the court,” “the failure to raise [Zilleruelo] in the district court is a failure that can be appropriately assigned to counsel for both parties.” Id. And like our supreme court, we have no desire to “incentivize attorneys to disregard their ethical obligation to point out controlling adverse authority.”[4] Id.

¶30 Admittedly, the distance between the argument made in the district court in Patterson (that prior precedent should be overruled) and the alternative argument made on appeal in Patterson (that prior precedent had already been statutorily overruled) was less than the distance between Summer’s argument below (that Mother should not be deemed to have been Summer’s guardian) and Summer’s argument on appeal (that it does not matter whether Summer had a guardian as long as Summer was mentally incompetent). But as close cases like this one reveal, there is no bright line between a new argument and an entirely distinct legal theory. Therefore, we have been counseled “to look at the underlying policies to determine whether new arguments are actually entirely new issues.” State v. Johnson, 2017 UT 76, ¶ 14 n.2, 416 P.3d 443. That is what we have done here. And in light of the policy considerations identified above, we conclude that Summer’s reliance on Zilleruelo does not present an entirely new issue but, rather, a new argument under the narrow, preserved issue of whether her claims were timely in light of the Tolling Statute and her guardianships. We therefore reject Robert’s argument that our preservation doctrine prevents us from considering the applicability of Zilleruelo.

  1. Invited Error

¶31 Robert also argues that Summer invited any error in the district court’s ruling related to the Tolling Statute because she affirmatively represented to the court “the very legal principle she now challenges on appeal.” We disagree and conclude that the invited error doctrine is inapplicable here.

¶32      “Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling.” State v. Popp, 2019 UT App 173, ¶ 23, 453 P.3d 657 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). “To invite an error, a party must do more than simply fail to object; the party must manifest some sort of affirmative representation to the trial court that the court is proceeding appropriately.” Id.

Application of the invited error doctrine serves three important purposes. First, it discourages parties from intentionally misleading the trial court so as to preserve a hidden ground for reversal on appeal. Second, it encourages counsel to actively participate in all proceedings and to raise any possible error at the time of its occurrence. Finally, it fortifies our long-established policy that the district court should have the first opportunity to address a claim of error.

State v. Moa, 2012 UT 28, ¶ 25, 282 P.3d 985 (cleaned up).

¶33 There is no denying that Summer’s counsel stated to the court that “a person does gain competency when there is a guardian that is appointed”; this statement conceded a legal rule that was wrong, which the district court erroneously applied when it determined that “the appointment of guardians for [Summer, including Mother,] removed the tolling” of the relevant statute of limitations. However, Summer never encouraged the court’s ultimate decision dismissing her claims as untimely under the Tolling Statute. Nor did she affirmatively represent that the district court was “proceeding appropriately” by dismissing her claims. Popp, 2019 UT App 173, ¶ 23. To the contrary, Summer steadfastly maintained that her claims were timely under the Tolling Statute by adamantly denying that Mother’s guardianship cured her incompetency.

¶34 Moreover, Summer’s actions in the district court fulfilled the first purpose of the invited error doctrine and at least partially fulfilled its second purpose. Specifically, there is no indication that Summer intentionally misled the trial court where, as we have already observed, there was no way in which she would have derived an advantage by waiting to raise Zilleruelo until appeal. And her counsel was actively participating in the proceedings and raised the possible error he perceived at the time of its occurrence.

¶35 We acknowledge that a decision to not apply the invited error doctrine in this circumstance may undermine the other purposes of the doctrine, including to encourage counsel to raise any possible error at the time of its occurrence and to thereby fortify the “long-established policy that the district court should have the first opportunity to address a claim of error,” Moa, 2012 UT 28, ¶ 25 (cleaned up)—the identical judicial economy purposes that undergird the preservation rule, see Patterson v. Patterson, 2011 UT 68, ¶ 15, 266 P.3d 828. However, the same important counter-considerations that led us to not apply the preservation rule in this situation, see supra ¶ 29, also lead us to not apply the invited error doctrine in this situation. Much like we said with regard to preservation, “we are unwilling to disregard controlling authority that bears upon the ultimate resolution of a case solely because the parties did not [discover] it below,” Patterson, 2011 UT 68, ¶ 18, and, thus, agreed to a misstatement of the law. Instead, we hold that the invited error doctrine does not apply when, as here, there is controlling authority that counsel for both sides—as well as the trial court—wholly failed to recognize and the appealing party did not acquiesce in the ultimate decision that is rendered erroneous by that controlling authority. In such circumstances, only an affirmative disavowal of the controlling authority itself will constitute invited error.

III. Sufficiency of Pleadings Regarding Incompetence

¶36 Finally, Robert argues that we should “affirm on the alternate ground that the [a]mended [c]omplaint fails to allege that Summer is mentally incompetent, which means that her claims are barred by the statute of limitations.” Robert asserts that the threshold for a person to be deemed “mentally incompetent” for purposes of the Tolling Statute is a high bar that Summer failed to sufficiently plead.

¶37 Our supreme court has explained that “tolling statutes based on mental incompetency are enacted to relieve from the strict time restrictions people who are unable to protect their legal rights because of an overall inability to function in society.” O’Neal v. Division of Family Services, 821 P.2d 1139, 1142 (Utah 1991) (cleaned up). “Courts generally hold that a person is incompetent for the purposes of a provision tolling a statute of limitations when the disability is of such a nature to show him or her unable to manage his or her business affairs or estate, or to comprehend his or her legal rights or liabilities.” Id. (cleaned up).

¶38      Summer’s amended complaint alleged that “Robert signed and filed a ‘Verified Consent to Conservatorship’ wherein he affirmed that . . . ‘Summer suffers from a disability that has impeded her ability to progress mentally and intellectually, and on information and belief, has only attained the intellectual age of approximately 12 years, though she is 18 years old.’” The amended complaint also alleged that “Summer remained under a disability and was therefore legally incompetent until the appointment of her current limited guardian.” Additionally, in both her original complaint and her amended complaint, Summer alleged that she “suffers from a variety of mental, emotional, and behavioral developmental disabilities, including cognitive impairment” due to her birth injuries and that “she has profound difficulties in seeking out and processing information on her own.” These allegations are more than sufficient to survive a motion to dismiss on the issue of mental incompetency under the Tolling Statute.

¶39      Of particular relevance are the allegations that, although of an adult age, Summer had attained the intellectual age of only a twelve-year-old and that she suffers from mental disabilities and cognitive impairment that make it profoundly difficult for her to seek out and process information. These allegations and permissible inferences that can be drawn from them paint a picture of someone who is unable to manage her own business affairs and to comprehend or protect her legal rights because of an overall inability to function in society. See generally Alpine Homes, Inc. v. City of West Jordan, 2017 UT 45, ¶ 7 n.2, 424 P.3d 95 (“In determining whether a lawsuit survives a motion to dismiss, we assume that the factual allegations in the complaint are true and we draw all reasonable inferences in the light most favorable to the plaintiff.” (cleaned up)). Indeed, where the Tolling Statute operates to relieve from the strict time restrictions of applicable statutes of limitation a person who is actually twelve years old, we find it difficult to conclude that the Tolling Statute would not similarly relieve an adult with the mental capacity of a twelve-year-old. Accordingly, we do not affirm on this alternative ground.

CONCLUSION

¶40      Zilleruelo clarifies that the Tolling Statute applies during the duration of a person’s incompetency, regardless of guardianship status. See Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, ¶ 24, 506 P.3d 509. Summer’s claims were therefore timely filed. Because we decline to conclude that this issue was unpreserved, to apply the doctrine of invited error, or to affirm on the alternative ground that Summer failed to sufficiently plead her incompetence, we reverse the district court’s decision and remand this matter to the district court for further proceedings consistent with this opinion.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] “Because the parties share the same last name, we use their given names with no disrespect intended by the apparent informality.” Rosser v. Rosser, 2021 UT 71, ¶ 1 n.1, 502 P.3d 294.

[2] “In reviewing a district court’s grant of summary judgment, we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party and recite the facts accordingly.” Ockey v. Club Jam, 2014 UT App 126, ¶ 2 n.2, 328 P.3d 880 (cleaned up).

[3] Counsel for Robert stated during oral argument before this court, “The issue in front of the district court was this: Do we, for purposes of Summer’s statute of limitations, apply all of the time that she had a legal guardian in place? So do we count both the time that Michelle Tischner was the legal guardian and do we count the time that [Mother] was her legal guardian?” Such a framing is consistent with our conclusion that the district court had an opportunity to rule on the issue of whether Summer’s claims were timely under the Tolling Statute in light of her guardianships.

[4] The only Patterson policy consideration not applicable here is the responsibility of appellate courts to “maintain a sound and uniform body of precedent,” which cannot be done if an appellate court is required “to issue an opinion in contravention of” controlling authority. Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. This was an active consideration in Patterson because the defendant there made alternative arguments on appeal, which required the supreme court to address the merits of the key issue in any event. See id. ¶ 8. In contrast here, Summer’s appellate argument is based solely on Zilleruelo v. Commodity Transporters, Inc., 2022 UT 1, 506 P.3d 509. Thus, if we were to determine that her argument was precluded by the preservation rule, we could simply affirm the district court’s decision without reaching the merits of the timeliness issue and thereby avoid issuing an opinion in contravention of controlling authority. We are not convinced, however, that the inapplicability here of this one policy consideration compels a different conclusion as to preservation.

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Holding Marital Property Hostage During a Divorce Just Makes You Look Petty By Braxton Mounteer, Legal Assistant

You may have the idea that you can leverage his or her favorite or most valued things to get a more favorable outcome in your divorce. Holding property that rightfully belongs to the other party (like her jewelry or his tools) makes you look bad any way that you spin it. You may see the situation as a delicate hostage negotiation in order to get what you believe that you deserve, but in reality, if you behave this way, it reveals you as the petty and vengeful spouse you are.
During your divorce, you will be required to divide the marital property between your spouse and yourself and it cannot be avoided. Property division is a major and often, though not always, contentious issue between divorcing parties, getting only more complex the longer the marriage has lasted and the more affluent parties are the. Purposely delaying the division of marital property only makes you look bad and drags out your already expensive divorce.
Every time that you do something just to “get a jab in” on your former spouse, you only look petty and childish. You and your spouse end up making more work (and more profit) for your attorneys and slow the irritating, painful, and angst-inducing process of divorce down.
Be as equitable as possible. Do you really need that specific item of personal property, or are you just trying to be spiteful? If you cannot agree on who should get an item of significant value, or there are not enough items of or there are not enough items (such as a house or a car), or if there are not enough items of property to divide value equally, then sell the item(s) and split the profit.
Take a cool headed and business like approach to the division of property.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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Your Divorce Lawyer is Serious About Deadlines By Braxton Mounteer, Legal Assistant

Throughout the divorce process you will have to meet many deadlines.

The court will even provide you with a list of due dates known as a notice of event due dates. If your lawyer does not provide you with a copy, ask for a copy, so that you know the deadlines for yourself.

The consequences for failing to meet the deadlines set by the court and the rules of court in your case can be damaging, even fatal to your case.

When a petition for divorce is filed and served, there is a deadline by which you must file and serve responsive pleadings, meaning your answer or answer and counterclaim. If you don’t respond by the set deadline, default judgment could be entered against you.

If you do not complete discovery or provide your initial disclosures by the deadlines, you may be barred from gathering or presenting evidence or witnesses at trial.

What about extensions of time? You might get an extension on a deadline if you have a legitimate reason to ask for one and if the opposing party agrees to grant you an extension or the court grants your request for an extension. Be careful when asking for extensions, however. If you get an extension on one deadline, the opposing party will almost surely expect a favor from you too in the future.

You are better off (and better for it) by religiously adhering to deadlines. Complying with the deadlines set by the court and the rules of court results in the fewest errors and setbacks and in the fairest and most equitable treatment from the court. And that results in your greatest changes of success.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What Should I Do if My Divorce Is Not Getting Solved Quickly?

This is a great question.

Go find a good (a good, not just any) retired divorce attorney (a divorce attorney, not some other kind of attorney who has no idea how a divorce case works), or, if you are fortunate to know a good (a good) divorce attorney as a personal friend (whether active or retired), go to that divorce attorney friend and recount for this attorney how long your case has been pending from the day it was filed to the present.

In your consultation answer—honestly and forthrightly and with as few adjective and adverbs as possible the questions the attorney you’re consulting with asks you; just the facts (if you are responsible—either in whole or in part—for delays, be honest about that too). The consulting attorney will ask you these questions to help him/her determine both 1) whether your attorney, the opposing party’s attorney, and the court is unreasonably or outright maliciously delaying the resolution of your case; and 2) what options you may have for getting your case moving and progressing expeditiously.

If the attorney you consulted tells you that your case is not progressing at an unduly slow pace, then consider yourself fortunate (even if you’re surprised to learn your case isn’t moving as slowly as you might have expected). Ask the consulting attorney what he/she sees in the handling of your case to this point that you and your attorney can and should do going forward to ensure the case does not lose momentum.

If the attorney you consulted tells you that your case is moving sluggishly, ask the consulting attorney 1) what the problems are; 2) why they are problems and 3) what to do to solve them. Take notes! Ensure that you cover all three subjects with the consulting attorney, so that you can 1) truly identify and understand the problems, 2) confront your attorney with them, 3) what can be done, and 4) why you expect it to be done going forward, if your attorney wants to continue representing you and being paid well to do it. When you do confront your attorney, don’t be a jerk about it. Don’t be a boob, but don’t be a jerk, either. Be businesslike and discuss the matter in a manner most likely to expose the problems, identify the solutions, and start implementing them.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-should-I-do-if-my-divorce-is-not-getting-solved-quickly/answer/Eric-Johnson-311?prompt_topic_bio=1

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On What Basis Should the Couple Share Half of Property in Divorce if One Contributes Significantly More Than the Other? How Is It Fair?

It’s fair. It’s not fair. Frankly, reasonable minds can differ on this question.

The governing principle in the USA is still (though it’s subtly and slowly changing) in most jurisdictions in the USA that I know of (if not all jurisdictions in the USA) is that property acquired during the marriage by the couple should be divided equally is because a marriage is an “e pluribus unum”-style principle: out of two, one. A married couple is considered to be one when it comes to the ownership of property the couple acquired during the marriage, even if that means that each spouse did not contribute an equal amount of money or effort to the purchase/acquisition of the property.

If the property was purchased with money earned or otherwise acquired by one or primarily by one of the spouses or in exchange for “sweat equity” that one spouse contributed more than the other, the idea is that “what’s mine is yours and what’s yours is mine—it’s all ours.”

Equitable distribution and community property are two different approaches to dividing marital property between spouses in divorce.

Community property states treat all property acquired during the marriage to be owned equally owned by the spouses, and so they, unless exceptional circumstances dictate otherwise, divide the marital property equally between the spouses. Equitable distribution states generally presume that an equal division of marital property is equitable, but an equitable division of property is not necessarily an equal division. In Utah (where I practice divorce and family law), for example the rule of equitable distribution is articulated this way:

Labon v. Labon, 517 P.3d 407, 2022 UT App 103, ¶¶25 – 27 (Utah Court of Appeals 2022; I removed the references to caselaw for the sake of making it easier to read and understand the principles articulated):

In making this division [i.e., and equitable division of property and debts and obligations] the court should engage in a four-step process: (1) distinguish between separate and marital property, (2) consider whether there are exceptional circumstances that overcome the general presumption that marital property should be divided equally between the parties, (3) assign values to each item of marital property, and (4) distribute the property in a manner consistent with its findings and with a view toward allowing each party to go forward with his or her separate life.

And in making the equitable distribution, the court should generally consider the amount and kind of property to be divided. As concerns the type of property, in situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. Doing so avoids the obviously undesirable situation that forces former spouses to be in a close economic relationship which has every potential for further contention, friction, and litigation, especially when third parties having nothing to do with the divorce will also necessarily be involved.

Moreover, a court should consider the tax consequences associated with the division of marital property if one of the parties will be required to liquidate assets to pay marital debts. But the court is under no obligation to speculate about hypothetical future tax consequences. Thus, when settling property matters, the trial court may decline to consider the speculative future effect of tax consequences associated with sale, transfer, or disbursement of marital property. In other words, there is no abuse of discretion if a court refuses to speculate about hypothetical future tax consequences of a property division made pursuant to a divorce.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/On-what-basis-should-the-couple-share-half-of-property-in-divorce-if-one-contributes-significantly-more-than-the-other-How-is-it-fair/answer/Eric-Johnson-311?prompt_topic_bio=1

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What Do We Do When Equal (50/50) Physical Custody Is Awarded but One Parent Isn’t Bearing the Responsibilities Equal Custody Requires of That Parent?

Recently a Quora.com reader commented on my answer to this question: Is there a primary parent in joint custody in Utah which is also known as “equal” or “50/50” custody?

They were good comments that reflect the frustrations of many parents in equal custody situations. To summarize them:

  • Equal physical custody should not be awarded unless each parent exercises equal parental responsibility
    • Or at the very least, if one equal custodial parent does more of the work of caring for the children during his/her time when the children are in his/her care, award that parent some (or more) child support for his/her trouble.
  • Equal custody should not be awarded or exercised if an equal custodial parent who is ordered to pay child support does not pay it.

It is absolutely and indisputably correct that for a parent to merit an award to him or her of equal physical child custody that parent must bear parental responsibility equally as well.

The question, then, is: what is equal parental responsibility?

While bearing parental responsibility equally could mean that the parents perform each and every parental task equally and in equal amounts (“if I take the child to the doctor this time, you have to take the child to the doctor the next time”), it does not necessarily require it. Pulling equal weight doesn’t mean pulling the same particular weight at the same particular time. If one parent is happier helping with homework than with athletics or club activities, then it may not be a bad idea for that parent to help with most of the homework and for the other parent to take care of getting the kids to and from soccer practices and games. You get the idea.

You mentioned that your ex-husband can pay but chooses not to pay the $40 he is court-ordered to pay each month for homeschooling costs. That’s inexcusable, if you were awarded sole custody, that wouldn’t magically cause Dad to pay you $40 every month either. So not paying money isn’t a reason not to award equal custody. THAT STATED, I know that some parents who were awarded equal custody want all the benefits of equal custody without meeting any of the associated responsibilities. The only way to keep some (some, not all) of these types honest is to hit them in the pocketbook.

We all know that if spending time with the children were conditioned on paying child support in full and on time (when able, of course), we’d see a lot more child support being paid. Not always, but a lot more. We also all know that if receiving child support were conditioned on ensuring that you showed up for every custody and parent-time exchange on time (when able, of course), we’d see a lot more child support being paid as well.

Unfortunately*, Utah’s law is “If a parent fails to comply with a provision of the parenting plan [i.e., the physical custody and parent-time awards] or a child support order, the other parent’s obligations under the parenting plan or the child support order are not affected.” (Utah Code § 30–3–10.9(9)) and “A parent may not withhold parent-time or child support due to the other parent’s failure to comply with a court-ordered parent-time schedule.” (Utah Code § 30–3–33(9))

You also referred to the situation in which Dad never attends health care appointments. This is a hard question to analyze, but here’s my reasoning:

  • If Dad can take the kids to these appointments without placing his job in jeopardy, he should. That way, neither parent is burdened too much with appointments and each parent stays apprised of their children’s health and health care.
  • But if Dad works a 9 to 5 job, and if the appointments take place during the 9 to 5 work day and you’re a stay-at-home parent who homeschools the kids, doesn’t it make more sense for you to take the kids to these appointments? Why make Dad do it just to make him do it? Why make Dad do it when you can do it easier and without placing Dad’s job in jeopardy?
  • On the other hand, if Dad could bear the health care appointments burdens with you equally, but refuses to do so, resulting in you spending all the time and making all the effort required to take care of this important custodial responsibility, that may justify awarding you sole physical custody of the children.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://utahdivorceandfamilylaw.quora.com/Is-there-a-primary-parent-in-joint-custody-in-Utah-which-is-also-known-as-equal-or-50-50-custody-Utah-like-many-s?__nsrc__=4&__snid3__=70639966822&comment_id=98421161&comment_type=3


*Again, and in fairness (and while I don’t have any data to support this), I’d bet that conditioning custody and parent-time on paying child support and conditioning the payment of child support on the child support recipient complying with custody and parent-time exchanges causes more problems than it solves. Maybe it doesn’t. If there is no data, I think it’s worth experimenting with to find out.

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What Can I Do if My Ex Doesn’t Let My Daughter Come for My Parenting Time Which Is Summer? Our Divorce Is Not Finalized Yet.

I can give you my personal opinion (not legal advice, but my personal opinion) from my perspective as a lawyer licensed in Utah and who practices divorce and family law in Utah. You’ll need to confer with a lawyer about the specifics of your particular case, but I will give you my general take on the situation below.

In Utah, if:

  • you and your spouse are parties to a pending divorce case;
  • you and your spouse have made a written agreement governing a parent-time schedule at any time during the year (whether it be when school is in session or when school is dismissed for the summer);
  • you have an agreement, but the terms of the agreement have not been made the order of the court;
  • you’re upholding your end of the agreement; you’re complying with all of the terms of the agreement;
  • the date when school will be dismissed for the summer is in just a few weeks, or even just a few days, away;
  • but then your spouse tries to renege on the agreement and tells you he/she won’t comply with the agreement

then I would immediately and without delay file an ex parte motion for a temporary order (perhaps an ex parte motion for a temporary restraining order (TRO)) asking the court to order the parties to adhere to their parent-time schedule agreement and request expedited disposition. The longer you wait, the harder it is to prevail. You can request that such a motion be reviewed and decided by the court much more quickly than a typical motion if you can show that time is of the essence (meaning that unless the motion is decided immediately, you will suffer the adverse effects of your spouse’s non-compliance with your parent-time agreement). You can argue that unless the court upholds and enforces the agreement, both you and the children will suffer irreparable harm. See Utah Rules of Civil Procedure, Rule 65A for more details. While there are no guarantees the court would grant such a motion (every judge sees things his/her own way), your odds of succeeding on such a motion are, on the face of it, pretty good.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://www.quora.com/What-can-I-do-if-my-ex-doesn-t-let-my-daughter-come-for-my-parenting-time-which-is-summer-Our-divorce-is-not-finalized-but-we-already-signed-it-and-it-ll-be-soon-filed/answer/Eric-Johnson-311?prompt_topic_bio=1

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Elder v. Elder – 2024 UT App 68 – enforcement vs. modification

Elder v. Elder – 2024 UT App 68

THE UTAH COURT OF APPEALS

BRITTANY LEE ELDER, Appellee, v. MATT BLAKE ELDER, Appellant.

Opinion No. 20210902-CA Filed May 9, 2024

Second District Court, Farmington Department

The Honorable David M. Connors No. 154700355

Julie J. Nelson and Jaclyn Robertson, Attorneys for Appellant Steven C. Tycksen, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES RYAN M. HARRIS and AMY J. OLIVER concurred.

TENNEY, Judge:

¶1 The district court issued an order requiring Matt Blake Elder to reimburse his ex-wife, Brittany Lee Elder, for the amount she had paid to satisfy a loan on a townhouse that she had been awarded in the divorce.[1] Matt challenges this ruling on appeal, arguing that it was a procedurally improper modification of the couple’s divorce decree. For the reasons set forth below, we affirm.

BACKGROUND

¶2 Brittany and Matt were married in 2008. In early 2015, Brittany filed a petition for divorce. Later that year, Brittany and Matt entered into a stipulated agreement that the district court subsequently adopted in a Decree of Divorce (the Decree). Under a “Division of Property” heading, the Decree divided the couple’s real property, vehicles, and other personal property. Matt received the “marital home along with any accompanying debts and/or equity.” Of note here, Brittany was awarded a townhouse “as an equalization of the distribution of the assets.” The Decree specified that “Matt will be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.”

¶3        A separate provision in the Decree was captioned “Remedies on Default.” It stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶4        Matt failed to remove the loan on the townhouse within 120 days. After that 120-day period expired, Brittany filed a motion for an order to show cause. In this motion, Brittany asked the court to hold Matt in contempt for failing to comply with several terms of the Decree—including, of note here, his obligation to pay off the loan associated with the townhouse. The district court later issued an order in which it refused to find Matt in contempt on the townhouse issue, but it did order Matt to “remove all liens on the townhouse” within 30 days. Matt failed to comply with this order.

¶5        In 2017, Matt filed for bankruptcy. Later that year, Brittany sold the townhouse. “[P]ursuant to a short sale agreement she made with the bank,” she paid off a discounted loan balance of $143,165.

¶6        In April 2019, Brittany filed another motion for an order to show cause relating to the townhouse. In this motion, Brittany requested a judgment in excess of $180,000, a figure that included the final loan balance, realtor’s commissions, closing costs, and repairs that she alleged were necessary to make the townhouse habitable.

¶7        During a hearing in July 2020, the district court noted that a domestic relations commissioner had certified for hearing the issue of “the amount [Matt] should pay [Brittany] due to his failure to have the liens removed from the townhouse.” At that point, Brittany’s counsel expressed the desire to conduct discovery on the issue. In response, Matt’s counsel suggested that she wasn’t sure if discovery was warranted because there was “no petition to modify pending,” after which she asked the court to “clarif[y]” whether it would “allow[] there to be discovery between the parties.” The court responded that it was allowing “discovery” on “what amounts, if any,” it should order Matt to pay Brittany for his “failure to have the liens removed from the townhouse,” and the court specifically ruled that the parties could depose each other on this if they wished.

¶8        Brittany subsequently submitted interrogatories, a request for production of documents, and requests for admission to Matt. For his part, Matt issued several subpoenas duces tecum to financial institutions. At a pretrial hearing in November 2020, Brittany argued that Matt’s responses to her requests for admission had been inadequate. Over the protest of Matt’s counsel, the court agreed that Matt’s responses had been inadequate and ordered Matt to submit more detailed responses. In the course of that hearing, Matt never argued that he was being deprived of the opportunity to conduct discovery of his own.

¶9        A few weeks later, the court held an evidentiary hearing on the question of “potential damages connected with the failure to deliver the title” to the townhouse “free and clear of liens.” At that hearing, both parties presented extensive arguments about their positions.

¶10      After almost a year of additional litigation, the court issued a written ruling on Brittany’s motion for an order to show cause. There, the court first noted that the provision in the Decree that made Matt “responsible” for any loans associated with the townhouse had “never been modified.” The court also ruled that Matt’s bankruptcy had not discharged his obligations relating to the townhouse.

¶11      The court then found that Matt had “failed to satisfy, pay off or remove the liens related to the loans associated with” the townhouse and that Matt’s failure had “forced” Brittany to sell the townhouse in order to pay off the discounted loan balance. The court also found that the “actual amount paid by” Brittany to the bank “to remove the lien” on the townhouse “that was associated with the loan was $143,165.00.” And it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree of Divorce.” The court accordingly awarded Brittany “the actual amount she paid the bank, $143,165,” plus post-judgment interest, though it then determined that she was not entitled to any additional amounts related to the renovation and sale of the townhouse. Finally, the court awarded Brittany her “reasonable expenses, including attorney fees and court costs actually incurred, related to the issue of [Matt’s] failure to comply with his obligations” under the Decree.

ISSUE AND STANDARD OF REVIEW

¶12 Matt challenges the district court’s ruling granting Brittany’s motion for an order to show cause. In Matt’s view, the ruling was not a valid enforcement of the Decree but instead improperly modified it. “We review procedural issues for correctness and afford no deference to the lower court’s ruling.” Berman v. Yarbrough, 2011 UT 79, ¶ 12, 267 P.3d 905.[2]

ANALYSIS

¶13 Matt argues that when the district court ordered him to reimburse Brittany for what she had paid to satisfy the loan on the townhouse, the court modified the Decree. In Matt’s view, because Brittany had only filed an enforcement action, not a modification action, this ruling was procedurally improper. We disagree with Matt’s assessment of the nature of the ruling.

¶14 District courts enjoy “inherent” authority, “when properly invoked,” to “enforce a final judgment.” Little Cottonwood Tanner Ditch Co. v. Sandy City, 2016 UT 45, ¶¶ 23–24, 387 P.3d 978 (quotation simplified); see also id. ¶ 33 (explaining that district courts may “make such orders as may be necessary to carry out and give effect to their decrees” (quotation simplified)). “If a party fails to comply with a specific directive of a judgment, another party to the judgment may move to enforce this directive.” Id. ¶ 24. However, a “court’s power to enforce a judgment is confined to the four corners of the judgment itself.” PacifiCorp v. Cardon, 2016 UT App 20, ¶ 6, 366 P.3d 1226 (quotation simplified). And a “motion to enforce cannot be used to take up matters beyond the contours of the judgment and thereby short-circuit the usual adjudicative processes.” Berman v. Yarbrough, 2011 UT 79, ¶ 15, 267 P.3d 905 (quotation simplified). A motion to enforce is thus “procedurally improper” where a judgment contains neither an “unequivocal mandate” nor a “clear directive” enjoining “the respondent to undertake some action.” Id. (quotation simplified). This is so because, “without a directive or unequivocal mandate, there is nothing for the court to enforce.” Id.[3]

¶15 Separate from the enforcement power, courts in some instances have power to modify a final judgment that has already been entered. And we’ve previously recognized that a key difference between the power to modify and the power to enforce is that the latter does “not generally extend to modifying the substantive rights of parties that have previously been agreed to or adjudicated.” Robertson v. Stevens, 2020 UT App 29, ¶ 8, 461 P.3d 323. In the family law context, “proceedings to modify a divorce decree . . . must be commenced by filing a petition to modify.” Utah R. Civ. P. 106(a). And a petition to modify allows courts to “revisit many of the provisions contained in a typical divorce decree, including provisions pertaining to child custody, child support, alimony, property distribution, and debts,” under the terms set forth by certain statutes. Robertson, 2020 UT App 29, ¶ 7.

¶16      Here, Brittany filed a motion for an order to show cause, which, as noted, was the procedural mechanism at the time for filing an enforcement action. But Brittany did not file a petition to modify the Decree. The question before us, then, is whether the district court moved beyond its enforcement powers when it ordered Matt to reimburse Brittany for what she had paid to satisfy the loan on the townhouse. Put differently, the question is whether this ruling was authorized from within “the four corners of the judgment,” Little Cottonwood, 2016 UT 45, ¶ 24 (quotation simplified), or whether it instead “modif[ied] the substantive rights of [the] parties,” Robertson, 2020 UT App 29, ¶ 8. In our view, this was indeed an enforcement ruling, as opposed to a modification, because it was grounded in the four corners of the Decree itself and did not alter the parties’ substantive rights.

¶17 “We interpret a divorce decree according to established rules of contract interpretation.” Osborne v. Osborne, 2011 UT App 150, ¶ 6, 260 P.3d 202 (quotation simplified). “When interpreting a contract, a court first looks to the contract’s four corners to determine the parties’ intentions, which are controlling.” Bakowski v. Mountain States Steel, Inc., 2002 UT 62, ¶ 16, 52 P.3d 1179. “If the language within the four corners of the contract is unambiguous, then a court does not resort to extrinsic evidence of the contract’s meaning, and a court determines the parties’ intentions from the plain meaning of the contractual language as a matter of law.” Id. Finally, in “interpreting a contract, we determine what the parties intended by examining the entire contract and all of its parts in relation to each other, giving an objective and reasonable construction to the contract as a whole.” G.G.A., Inc. v. Leventis, 773 P.2d 841, 845 (Utah Ct. App. 1989).

¶18 The Decree in question stated that “Matt [would] be responsible for any loans associated with the townhouse and have them paid off within 120 days of signing this Stipulation.” And it further explained that the townhouse was being awarded to Brittany “as an equalization of the distribution of the assets.” In this sense, the Decree plainly contemplated that Brittany would receive the townhouse free and clear. But she didn’t. As indicated, Matt failed to pay off the loan within 120 days. And when the court subsequently issued another order requiring Matt to remove the liens within an additional 30-day period, Matt failed to comply with that order too.

¶19 In the ruling at issue, the court found that Brittany was ultimately “forced to sell” the townhouse and “pay the discounted bank loan balance in the amount of $143,165,” and it further found that the “required payment of this amount” by Brittany “was a direct result of [Matt’s] failure to comply with the provisions of the Decree.” Matt has not challenged these findings on appeal.

¶20 In light of these findings, the order requiring Matt to reimburse Brittany was a proper exercise of the court’s enforcement power. The language of the Decree didn’t narrowly require Matt to pay a particular amount to a particular bank. Rather, the provision in question was worded more broadly, requiring Matt to “be responsible for any loans associated with the townhouse” and requiring him to “have them paid off within 120 days.” (Emphasis added.) As a result, when Brittany was subsequently “forced” to pay the loan off herself due to Matt’s failure to comply with his obligations, the court’s decision to place that financial burden back onto Matt’s shoulders did nothing more than “carry out and give effect” to the Decree’s own terms. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified).

¶21      Matt responds on several fronts, but we find none of them availing.

¶22      First, Matt argues that under the principles set forth in Gullickson v. Gullickson, 2013 UT App 83, 301 P.3d 1011, the court’s order could only have been accomplished through a modification action. We disagree. In Gullickson, the divorce decree had set forth a specific arrangement for how to deal with the marital home after the divorce: namely, the wife was permitted to live in it for a period of five years, during which period she was responsible for making the mortgage payments; at the end of the five years, the husband would be required to either buy out the wife’s share of the equity in the home or instead sell it and give her half of the proceeds. Id. ¶ 2. Of some note, the arrangement under which the wife could remain in the home for five years was “prompted at least in significant part” by the “ongoing special needs” of the parties’ son. Id. ¶ 22. When the wife subsequently faced a changed financial situation, however, she decided to move from the home earlier than planned. Id. ¶ 4. To facilitate this, she “filed a petition to modify the divorce decree,” asking the court to require the husband to either buy her out sooner than was required by the decree (thus changing the time-period set forth in that decree), or to instead agree that she could move from the home and rent it out in order to help her pay the mortgage. Id. ¶ 4. The district court granted the wife’s request and directed the husband to make that choice. Id. ¶¶ 6–7, 13.

¶23 On appeal, we considered various questions relating to whether the district court had properly followed the modification procedures. Id. ¶¶ 21–25. Drawing on aspects of that discussion, Matt now suggests that Brittany’s request in this case could only have been brought as a modification petition. But unlike the wife in Gullickson, Brittany did not file a petition to modify her divorce decree; rather, she filed a motion for an order to show cause, so she chose an entirely different procedural tack all along. Moreover, unlike the wife in Gullickson, Brittany did not ask the court to change any particular term of her divorce decree. Rather, when Brittany asked the court to order Matt to reimburse her for the pay-off amount on a loan that Matt was supposed to have paid from the beginning, Brittany was asking for Matt to be held “responsible” for that loan, which is what her divorce decree already required. Thus, Gullickson involved a modification because the order changed that divorce decree’s terms; by contrast, this case involved an enforcement action because it sought to effectuate the divorce decree’s terms. Gullickson therefore doesn’t mean that Brittany could only proceed through a modification action.

¶24      Second, Matt argues that because the Decree required him to pay off any loans within 120 days, and because the amount at issue had been paid by Brittany much later than those 120 days, the court’s order effectively changed the Decree’s essential terms, thus constituting a modification. If the Decree had only said that Matt was required to pay off a particular loan to a particular bank within 120 days, Matt’s argument might have a little more force (although we might still have some skepticism). But as noted, the Decree wasn’t worded that narrowly. In addition to the language Matt relies on, the Decree said that “Matt will be responsible for any loans associated with the townhouse,” and it further noted that Brittany was being awarded the townhouse “as an equalization of the distribution of the assets.” (Emphasis added.)

¶25 As indicated, when reading contracts or divorce decrees, we interpret surrounding provisions in harmony with each other. The unmistakable intent of the Decree was to require Matt to assume the financial obligations associated with the townhouse. When Matt repeatedly failed to do so in a timely manner, the court had authority to “make such orders as may be necessary to carry out and give effect” to these provisions. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Since it’s uncontested on appeal that Matt’s failure to timely pay off the loan “forced” Brittany to sell the townhouse, the order in question placed the financial cost of that sale back onto Matt, thereby making him “responsible” for the loan, which is what the Decree always required.

¶26 Third, Matt complains of the alleged unfairness that resulted from the court treating this as an enforcement action, as opposed to requiring Brittany to proceed through a petition to modify. According to Matt, if this had been filed as a modification petition, the rules would have provided him with delineated discovery powers. In Matt’s view, these discovery powers would have allowed him to obtain evidence to support various defenses, such as “whether Brittany could have (or even did) take mitigating action,” whether Brittany received any benefit from living in the townhouse between the time of the Decree and when Brittany sold it, and whether “the marital estate was smaller than the parties thought when they stipulated to its division.”

¶27      Matt’s concerns seem grounded in the fact that, both before and after the 2021 amendments, the rules don’t provide for formalized discovery relating to an enforcement action (whether filed as an old motion for an order to show cause or instead through a current motion to enforce). But the question of whether a party should automatically be entitled to discovery in an enforcement action is a question best left to those tasked with drafting the rules. Here, however, Brittany filed a motion for an order to show cause, and as explained above, that motion was warranted to enforce the terms of the Decree. We see no basis for overturning the district court’s ruling simply because the rule drafters have not provided for automatic discovery in such cases.

¶28    In any event, even if it’s possible that the absence of automatic discovery might result in some unfairness in some other enforcement action, Matt is not in a position to complain about any such unfairness here. As noted, the district court specifically allowed the parties to conduct discovery—including taking depositions, if the parties desired—on “what amounts, if any,” the court “should order [Matt] to pay [Brittany] due to the failure to have the liens removed from the townhouse.” In reliance on that, Matt issued several subpoenas duces tecum to financial institutions. And Matt never argued below that he was being deprived of the opportunity to conduct any additional discovery.

¶29      Moreover, Matt also has not persuaded us that any of the proposed evidence would have constituted a valid defense to Brittany’s request for relief. Under the Decree, Brittany was entitled to receive the townhouse without any loans as of 120 days after the stipulation was signed. Nothing in the Decree obligated her to take any mitigation efforts if Matt failed to comply with his obligations to pay off the loans, and any benefits that she received from living in the townhouse in the ensuing years were benefits that she was always entitled to receive. As for Matt’s claim that the parties underestimated the marital estate’s size, we note that Matt stipulated to the terms of the Decree. If he later thought that some error had infected that stipulation or the ensuing Decree, he could have made his own request to somehow alter or modify it. But what Matt wasn’t entitled to do was simply not comply with its terms. And in the meantime, Brittany was entitled to ask the court to enforce the Decree as written, which is what she did.

¶30      In short, we conclude that the district court’s order appropriately “carr[ied] out and [gave] effect to” the terms of the Decree. Little Cottonwood, 2016 UT 45, ¶ 33 (quotation simplified). Because of this, the district court did not err in granting Brittany’s motion for an order to show cause.

¶31 As a final matter, Brittany has requested an award of attorney fees and costs that she incurred in this appeal, and she has done so pursuant to the same provision from the Decree that authorized the fee award she received below. That provision stated that in “the event that either party defaults in her or his obligations, or must seek relief from the Court in the enforcement of the Decree of Divorce, the nonprevailing party shall be liable to the other party for all reasonable expenses, including attorneys’ fees and court costs actually incurred.”

¶32      “If the legal right to attorney fees is established by contract, Utah law clearly requires the court to apply the contractual attorney fee provision and to do so strictly in accordance with the contract’s terms.” Vierig v. Therriault, 2023 UT App 67, ¶ 13, 532 P.3d 568 (quotation simplified), cert. denied, 537 P.3d 1013 (Utah 2023). And as a general matter, “when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Tronson v. Eagar, 2019 UT App 212, ¶ 39, 457 P.3d 407 (quotation simplified). Because Brittany has prevailed on appeal, she is entitled to her fees reasonably incurred on appeal. We therefore remand this case to the district court for determination of those fees and an entry of that award.

CONCLUSION

¶33      The ruling in question was a valid exercise of the district court’s power to enforce the Decree. As a result, we affirm the court’s decision and remand for an award of attorney fees reasonably incurred on appeal.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] Because the parties share a last name, we’ll refer to them by their first names moving forward, with no disrespect intended by the apparent informality.

[2] In his opening brief, Matt surmised that the district court’s ruling might be read as a contempt ruling, and he then argued that the ruling was not justified under the court’s contempt powers. In her responsive brief, Brittany declined to defend the ruling on this basis, instead insisting that it was a valid enforcement action. We accordingly address the ruling solely on those terms.

[3] The rule in effect at the time that Brittany filed the motion at issue allowed her to file an order to show cause, and it further stated that such a motion could be granted for the “enforcement of an existing order.” Utah R. Civ. P. 7(q) (2019). The cases we’ve discussed above referred to a court’s enforcement power.

Under a rule that became effective in May 2021 and that remains in place, a motion for an order to show cause in a “domestic relations action[]” is now referred to as a “motion to enforce.” See Utah R. Civ. P. 7B(a), (i), (j) (2023). (The same is true in civil cases more generally under rule 7A of the Utah Rules of Civil Procedure.) Rule 7B further provides that its process “replaces and supersedes the prior order to show cause procedure.” Id. R. 7B(j). As with the old regime, however, the new one turns on the court’s enforcement power. See id. R. 7B(a) (allowing a party to file a motion to “enforce a court order or to obtain a sanctions order for violation of an order”).

Neither party in this case has argued that this new rule was intended to alter the substantive scope of a court’s enforcement power, much less that the new rule did so in a manner that would change the outcome of this case. Having surveyed the matter ourselves, we see no authority suggesting that such a change was intended.

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Should You Stay Friends with Your Former Spouse? By Braxton Mounteer

Whether you should be or try to be friends with your spouse after a divorce is a tough question to answer. Many divorced people continue to care about each other after divorce. Some even find their personal relationship between each other improves. Most maintain an icy distance from each other. I won’t say that being truly friendly can’t be accomplished after divorce, but the question really is: should it?

If you have children, at the very least you must maintain a respectful relationship with the children’s co-parent (even if you have to fake it, in my opinion). Just because you and your former spouse have differences does not mean that your children must share in those differences. Maintaining a co-parenting relationship that doesn’t burden the children is in their best interest. They deserve it. It’s the least you can do for them.

Side note here: I know there are those of you reading this who were innocent victims of a spiteful spouse in your divorce. That you were the class act all along and continue to be, while your ex-spouse remains antagonistic toward you. I know about those of you treat your ex-spouse by Golden Rule post-divorce, while your ex-spouse does not reciprocate. As a legal assistant, I see the ex-spouses who hypocritically hold you to a standard they themselves do not follow. This is not fair, not even close, but for the sake of your children’s well-being, you need to know that sinking to the same level as your petty, spiteful, even malicious ex-spouse would benefit no one and only make life harder for the kids. Doing the right thing matters most when doing the right thing is hard.

Sometimes it may be unavoidable to have some kind of continuing relationship with your ex-spouse. Are you coworkers? Do you have mutual friends or engage in the same activities that neither of you is willing to give up? If so, you must determine mutual friends and activities are worth making the effort to get along with your ex-spouse. If they aren’t, you can’t complain about having to give those things up for the sake of achieving your goal of having nothing to do with your ex-spouse post-divorce.

We have all heard a story of an “ ugly divorce”. Most people burn whatever bridge that they had or may have had with their spouses over the course of that process.

The fact is that the right thing to do, if only for your own sake and without consideration for your ex-spouse, is to recognize your own failings that contributed to the failed marriage (and don’t misunderstand me; if you’re not at fault, you’re under no obligation to apologize falsely) and to forgive your ex for his or her faults and the hurt he or she caused you, so that you can put your troubled past behind you as best you can as you move on with life after divorce. “Hate is a poison more deadly to the hater than the hated.” If all you can do is make peace with the pre-divorce past, that’s invaluable. If you can do one better and bury the hatchet, becoming friends, though no longer spouses, don’t let your pride stand in the way of that. If you do, you’ll regret it.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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What Would I Say, if I Were a Judge or Commissioner Hearing a Protective Order Request Case and I Denied the Request for the Protective Order?

I would say this:

By law I cannot grant a request for a protective order unless a preponderance of the evidence supports the request.

If the request lacks the support of a preponderance of the evidence, then the law prohibits me from granting it, even if I desired to grant it in spite of the law. I have no desire to act in spite of the law.

It is tempting to grant a protective order unsupported by a preponderance of evidence on a “better safe than sorry” basis, but that temptation’s ultimate end is, as is true of all temptations, evil. Abusing the law to provide protection from ostensible cohabitant abuse would be rank hypocrisy.

Finding a petitioner has not met the burden of proof does not mean either 1) the petitioner is or is not, in fact, a victim of cohabitant abuse; or 2) the respondent did or did not, in fact, commit cohabitant abuse.

If any protective order petitioner is in fact a victim of cohabitant abuse, then I suggest that the petitioner take all reasonable, necessary, and legally permissible measures available to the petitioner for the petitioner’s protection. A protective order is certainly not the only or the most effective protective measure a cohabitant abuse victim can or should take. A sheet of paper or an image on a screen cannot deflect fists, feet, clubs, knives, or bullets. A protective order is only as effective as it is duly enforced, but unfortunately, “When seconds count, the police are just minutes away.” For your own sake be resourceful. Do not become a victim of your own inaction.

If a protective order respondent is, in fact, innocent of the allegations made against the respondent, then I extend to all such respondents this court’s apologies for the stigma that may, and almost certainly will, attach to and dog the respondent for who knows how long as the result of being falsely accused. Fraudulently sought protective orders are all too common, and everyone in the legal system knows it.

If a protective order respondent is, in fact, a cohabitant abuse perpetrator whom the preponderance of evidence standard unwittingly abetted, then I hope and suggest you seize on this opportunity to sin no more. You may not be so lucky next time.

The first courtroom I set foot in as a lawyer had these two statements written on its walls: “Know thyself. – Socrates” and “Control thyself. – Cicero”. I commend this advice both to the petitioner and to the respondent.

Having reviewed the admissible evidence presented to me on the petitioner’s request for a protective order and having found that the petitioner has not met the preponderance of evidence burden of proof, the request must, therefore, necessarily be and is denied.

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What Would Happen if One Parent Does Not Bring Their Child for a Utah Court-Ordered Custody Exchange?

First, we need to learn and understand the term for violating a court order. That term is “contempt of court.” In Utah, one commits contempt of court in a civil proceeding (like a child custody case in a divorce or between unwed parents) if, and only if, all of the following criteria are met:

As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so. The district court must make explicit findings, whether written or transcribed, on the three elements of contempt. In a civil contempt proceeding, those elements must be proved by clear and convincing evidence.

(Koehler v. Allen, 466 P.3d 738, 2020 UT App 73 (Court of Appeals of Utah))

So, if the parent did not meet for the child custody or visitation/parent-time exchange because his/her car was out of commission or because the flight home was delayed for weather or because he/she was in a coma (you get the idea), then that parent couldn’t be held in contempt because a) that parent did not have the ability to comply (at least at that time), and b) did not intentionally fail or refuse to comply with the court’s order, that parent cannot be held in contempt.

If the parent could comply with the order and intentionally violated the order, that parent can be held in contempt.

To hold a parent in contempt, you would need to file a motion to hold the parent in contempt. You could move for (but are not required to move for) sanctions against the parent for his/her contemptuous actions. Here is where you can find the forms for this, if you want to file them yourself, instead of retaining the services of an attorney to file and prosecute the motion for you (warning: rarely do people who aren’t attorneys fill out, file, and serve these forms correctly, and oftentimes a winning motion is lost because of it):

Motion to Enforce Order (utcourts.gov)

What kinds of sanctions can the court impose for contempt of court for noncompliance with the child custody and parent-time orders?

See Utah Code Section 78B-6-316:

Utah Code § 78B-6-316.  Compensatory service for violation of parent-time order or failure to pay child support.

(1) As used in this section, “obligor” means the same as that term is defined in Section 81-6-101.

(2) If a court finds by a preponderance of the evidence that a parent has refused to comply with the minimum amount of parent-time ordered in a decree of divorce, the court shall order the parent to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the parent about the importance of complying with the court order and providing a child a continuing relationship with both parents.

(3) If a custodial parent is ordered to perform compensatory service or undergo court-ordered education, there is a rebuttable presumption that the noncustodial parent be granted parent-time by the court to provide child care during the time the custodial parent is complying with compensatory service or education in order to recompense him for parent-time wrongfully denied by the custodial parent under the divorce decree.

(4) If a noncustodial parent is ordered to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the noncustodial parent’s parent-time with the child.

(5) The person ordered to participate in court-ordered education is responsible for expenses of workshops, classes, and individual counseling.

(6) If a court finds by a preponderance of the evidence that an obligor has refused to pay child support as ordered by a court in accordance with Title 81, Chapter 6, Child Support, the court shall order the obligor to:

(a) perform a minimum of 10 hours of compensatory service; and

(b) participate in workshops, classes, or individual counseling to educate the obligor about the importance of complying with the court order and providing the children with a regular and stable source of support.

(7) The obligor is responsible for the expenses of workshops, classes, and individual counseling ordered by the court.

(8) If a court orders an obligor to perform compensatory service or undergo court-ordered education, the court shall attempt to schedule the compensatory service or education at times that will not interfere with the obligor’s parent-time with the child.

(9) The sanctions that the court shall impose under this section do not prevent the court from imposing other sanctions or prevent any person from bringing a cause of action allowed under state or federal law.

(10) The Legislature shall allocate the money from the Children’s Legal Defense Account to the judiciary to defray the cost of enforcing and administering this section.

What else can the court order?

See Utah Code Section 78B-6-310:

Utah Code § 78B-6-310.  Contempt — Action by court.

(1) The court shall determine whether the person proceeded against is guilty of the contempt charged. If the court finds the person is guilty of the contempt, the court may impose a fine not exceeding $1,000, order the person incarcerated in the county jail not exceeding 30 days, or both. However, a justice court judge or court commissioner may punish for contempt by a fine not to exceed $500 or by incarceration for five days or both.

(2) A fine imposed under this section is subject to the limitations of Subsection 76-3-301(2).

And you can ask for the court to award you the fees and court costs you incurred in having to prepare and prosecute the motion to enforce the domestic relations order and for sanctions as well.

Should I call the police?

Whether to call the police depends on the circumstances, but generally, I discourage calls to the police simply because a parent refuses to obey a court order to meet to exchange custody of the children. If there is real concern (real concern) that a parent has absconded with or kidnapped a child, a call to the police is more than warranted, but calling the police in the hope that they will coerce or intimidate a parent into complying with the custody exchange orders usually doesn’t work and often makes you (if you call the police) look spiteful. And it upsets the police (they feel they have much better things to do than respond to calls of noncompliance with child custody exchange orders). Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it.

But I thought that noncompliance with child custody and parent-time orders is a crime.

In Utah, it is a crime (see Utah Code Section 76-5-303 (Custodial Interference)), but with extraordinarily rare exception, law enforcement officers simply refuse to enforce it. I’ve never witnessed anyone being arrested or even cited for it. Better to report the noncompliance to the police by calling them, reporting the noncompliance with a brief description of what happened, and asking the police department to make a record and give you the incident number for the report. That way, when you move to hold the contemptuous parent in contempt, you have proof that you were complying at your end and did complain to the police about it. That way you have documented the noncompliance and your reasonable efforts to enforce it to the extent that the police are willing to do anything connected with enforcement (which is, admittedly very little).

What if this is a chronic problem (the other parent repeatedly doesn’t show up for exchanges)?

If the other parent is shamelessly flouting the custody and parent-time exchange orders, and if you have a long enough history you can prove (and you can prove the no-shows are intentional), that could, if it’s egregious enough, constitute a basis for a modification of the child parent-time and/or child custody awards themselves. If you can prove that the chronic noncompliance constitutes “a substantial and material change in the circumstances upon which custody was awarded” and “that a modification is in the best interests of the child,” to remedy the problems being caused by these substantial and material change in the circumstances (See Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491), you might prevail on such a petition.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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In re Adoption of P.P. – 2024 UT App 62 – ineffective assistance of counsel – adoption

In re Adoption of P.P. – 2024 UT App 62

THE UTAH COURT OF APPEALS

IN THE MATTER OF THE ADOPTION OF P.P., A PERSON UNDER EIGHTEEN YEARS OF AGE.

B.P., Appellant, v. B.M. AND J.M., Appellees.

Opinion No. 20230486-CA Filed May 2, 2024 Third District Court, Salt Lake Department

The Honorable Kara PettitNo. 222900323

Sheleigh Harding, Attorney for Appellant Sierra D. Hansen, Attorney for Appellees

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 B.P. (Father) appeals from a district court order terminating his parental rights to his daughter, Phoebe.[1] Father’s only claim on appeal is that his counsel (Counsel) provided ineffective assistance for failing to call certain witnesses to testify at trial. But because Father’s claim hinges on his request for a remand to develop the record, and because we deny the request, we affirm the district court’s order.

BACKGROUND

¶2        In 2014, two weeks after Phoebe was born, Father was arrested on a parole violation, and he remained incarcerated on various charges for “a big portion of her life.” Phoebe lived with her mother (Mother) until the summer of 2021, when Mother became seriously ill and was hospitalized with rapidly declining health. Two weeks before Mother’s eventual death, Father was released from prison.

¶3        Phoebe spent the day before Mother’s death with Father. But, on Mother’s wishes, B.M., Phoebe’s maternal grandmother (Grandmother), and Grandmother’s husband, J.M. (Step-Grandfather; collectively, Grandparents), retrieved her from Father.[2] The next day was an “extremely traumatic day,” as it became clear that Mother was dying. Father appeared at the hospital demanding to take Phoebe with him. His behavior was “intense,” “erratic,” and “scary” enough that security removed him from the hospital. That night, at a vigil in Mother’s honor, Grandmother refused to let Phoebe leave with Father, so he called the police to assist him. But the police declined to physically place Phoebe with Father.

¶4        Phoebe then went to live with Grandparents. Grandmother initiated guardianship proceedings and Father filed an objection. The case was referred to mediation, which was unsuccessful because Father failed to appear. The court found that Father’s failure to appear “amount[ed] to a default” and granted Grandmother permanent guardianship. The court noted Father’s parental rights had not been severed and recommended he seek services and parent-time, but because he was eventually incarcerated again, Father did not do so.

¶5        In August 2022, Grandparents petitioned to adopt Phoebe. The district court held a one-day bench trial. At trial, Step-Grandfather testified that Phoebe was “scared” of Father because of his behavior and had expressed fear that Father would try to take her. Step-Grandfather testified that Phoebe felt abandoned by Father, as he had never written her letters, called her on her birthday, or sent her gifts. Step-Grandfather stated he had a “very minimal” relationship with Father and believed “it wouldn’t be a safe environment” for Phoebe to live with him. Mother’s friend (Friend), who had been at the hospital on the day of Mother’s death, testified about Father’s “scary” and “intense” behavior in trying to take Phoebe with him against Mother’s wishes. Grandmother testified that Father called Phoebe only one time since Mother’s death and had not followed the court’s guardianship order to establish a relationship with her. Grandmother stated that she could not work well with Father because she did not have a relationship with him.

¶6        Although Father’s initial disclosures included a list of ten potential witnesses, Counsel called only one witness at trial— Father himself. Father testified that he had regular communication with Mother while Mother was still alive and he would talk to Phoebe whenever he could, but he admitted that these phone calls mostly consisted of his talking to Mother. He admitted he had been incarcerated for a “big portion” of Phoebe’s life and had not attended the guardianship proceedings, but he noted that Phoebe had spent “four or five days” with him before Mother died. And he testified that he had tried to contact Phoebe after Mother’s death, but Grandparents had given him a “bogus number” and he could not “get ahold of them.” He stated that Grandparents had a “vendetta” against him.

¶7        The court then issued its findings of fact and conclusions of law. First, the court found clear and convincing evidence of statutory grounds for termination, concluding Father had both abandoned Phoebe and made only token efforts to support or communicate with her. With respect to abandonment, the court found prima facie evidence that Father had no communication with Phoebe since shortly after Mother’s death, he had defaulted in the guardianship proceeding, and Grandparents were not aware of his location until they saw a news report that he had been arrested. And with respect to token efforts, the court found Father had, in fact, made no effort to support Phoebe “financially or emotionally”; he was incarcerated for “substantial periods” of her life and had made no attempt to communicate with her while incarcerated; and though he had “some communication with [Phoebe] while out of jail, these time periods were short.” The court also found that Father had “never provided a home” for Phoebe and had never lived with her.

¶8        The court then turned to what it called the “crux of this case”—whether termination was in Phoebe’s best interest. The court found the presumption of preserving “natural familial bonds” had been rebutted in this case because Father had never lived with Phoebe, did not fulfill “the normal parental obligations/responsibilities,” and “never had a positive, nurturing parent-child relationship” with her. The court also considered whether a permanent guardianship could equally protect and benefit Phoebe, but it found that Father and Grandparents “have a terrible relationship” and “will never be able to work together to ensure [Phoebe] has a healthy relationship” with both parties. And though Phoebe had some interaction with Father’s extended family, the court found this was “not substantial enough to outweigh the harms” to Phoebe resulting from a lack of permanence in her guardianship arrangement. The court also found that Father was unable to act in Phoebe’s best interest, demonstrated by his calling the police to remove Phoebe from Mother’s vigil, which was “highly traumatic” for Phoebe. The court found it likely that, should the guardianship remain intact, Phoebe would have to endure the fear of recurring traumatic events. Thus, the court found it strictly necessary from Phoebe’s point of view to terminate Father’s parental rights.

¶9        Father immediately filed a notice of appeal from the termination order. In the meantime, the court granted Grandparents’ petition for adoption. Father then filed a notice of appeal from the adoption decree. On the parties’ stipulation, this court then consolidated the two appeals. After his appeals were consolidated, Father filed a motion requesting a stay of briefing, alleging Counsel provided ineffective assistance and requesting a remand to the district court to develop the record in support of his claim. Father noted that because this was a civil case, remand under rule 23B of the Utah Rules of Appellate Procedure was not available but urged that remand could nonetheless be granted under one of several other “procedural pathways.”

¶10 In support of his request for remand, Father attached declarations from six potential witnesses—his mother, sister, grandmother, uncle, aunt, and wife. Each declaration offered a variation on the same basic facts: Father’s extended family members were “heavily involved” with Phoebe’s and Mother’s lives, Father and Phoebe had “weekly” phone contact, Father and Phoebe “lived” together with Father’s mother and sister before Mother’s death, Father was a “regular dad” and had established a “loving and affectionate . . . father/daughter relationship” with Phoebe, and Grandparents were “difficult to contact” or had “completely blocked” Father’s extended family from contacting Phoebe after Mother’s death. Father argued this testimony would have changed the outcome of his trial—rendering Counsel’s failure to call the witnesses ineffective assistance. We denied the stay and deferred ruling on Father’s request for remand “pending briefing and plenary consideration of the appeal.”

ISSUE AND STANDARD OF REVIEW

¶11      Father’s only argument on appeal is that Counsel provided ineffective assistance by failing to call several witnesses during the termination proceeding. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” In re C.M.R., 2020 UT App 114, ¶ 11, 473 P.3d 184 (cleaned up).

ANALYSIS

¶12 Father argues Counsel provided ineffective assistance in failing to call several witnesses at the termination trial. To prevail on his claim, Father “must demonstrate both (1) that [Counsel’s] performance was deficient and (2) that [he] suffered prejudice as a result.” In re D.R., 2022 UT App 124, ¶ 16, 521 P.3d 545 (cleaned up), cert. denied, 525 P.3d 1264 (Utah 2023). But because the record does not support his claim, Father requests a remand for the district court to hold an evidentiary hearing regarding Counsel’s alleged ineffective assistance.

¶13      Father recognizes that remand here is not possible under rule 23B of the Utah Rules of Appellate Procedure. See Utah R. App. P. 23B(a) (“A party to an appeal in a criminal case may move the court to remand the case to the trial court for entry of findings of fact, necessary for the appellate court’s determination of a claim of ineffective assistance of counsel.” (emphasis added)). But he urges we may nonetheless grant a remand patterned after two of our prior decisions, In re S.H., 2007 UT App 8, 155 P.3d 109, and In re C.M.R., 2020 UT App 114, 473 P.3d 184. In both cases we determined that—in the context of child welfare proceedings in juvenile court—parents who provided extra-record evidence alleging ineffective assistance on appeal were entitled to a remand similar to that provided by rule 23B to develop the record in support of their claims. See In re C.M.R., 2020 UT App 114, ¶¶ 31–32; In re S.H., 2007 UT App 8, ¶¶ 14–16. As this type of remand is “analogous to remand under rule 23B of the Utah Rules of Appellate Procedure, it requires a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective.” In re D.R., 2022 UT App 124, ¶ 18 (cleaned up).

¶14      This procedure has not yet been applied in the context of private termination petitions filed in district court.[3] But we decline Father’s invitation to do so here because even were we to grant him such a remand, he would be unable to show that Counsel was ineffective. In order to terminate Father’s parental rights, the district court was required to find that (1) one or more of the statutory grounds for termination were present and (2) termination was in Phoebe’s best interest. See In re adoption of J.E., 2024 UT App 34, ¶ 10. The court made detailed findings on each step and, even accepting the facts asserted in the carefully worded witness declarations as true, they do not undermine these findings.

¶15      Several of the declarations asserted that Father had weekly phone contact with Phoebe before Mother’s death. But this does not contradict the court’s finding that Father’s last contact with Phoebe was shortly after Mother’s death and nearly two years prior to the trial. Several of the declarations stated that Phoebe had “lived” with Father before Mother’s death. But Father himself testified he had only spent “four or five days” with Phoebe during that time. And, regardless, this testimony would not have altered the court’s finding that Father had “never provided a home for [Phoebe], much less a permanent home, and has never lived with” her.

¶16 All six witness declarations suggested that Father was a “regular dad,” had a “loving and affectionate . . . father/daughter relationship” with Phoebe, and was attentive to her needs. But the court determined that there was strong evidence that Father “lacks the ability to act in [Phoebe’s] best interest” because, after never having custody of her, “he called the police to physically remove her from” the vigil on the day of Mother’s death, which was “highly traumatic” for her. Further, the court found that Father knowingly allowed guardianship to be granted to Grandparents and had never followed the court’s orders to develop a relationship with Phoebe pursuant to the guardianship order. Testimony about positive interactions between Phoebe and Father—observable for at most five days—does not dispel the court’s finding that Father had “never had a positive, nurturing parent-child relationship” with her.

¶17      Several of the potential witnesses stated that Grandparents had “abducted” Phoebe from Father. And several alleged that Grandparents had either been difficult to reach or had “completely blocked” them from contacting Phoebe. But the court found that Phoebe had interacted with Father’s extended family under the guardianship order, though this contact was “not substantial enough to outweigh the harms to” Phoebe from a lack of permanency. And, if anything, these apparent conflicts between Grandparents and Father’s family only seem to add support to the court’s finding that Grandparents and Father had a “terrible relationship” and would be unable to work together to facilitate a healthy relationship between all parties.

¶18 We fail to see how this testimony from Father’s family members would have changed the court’s conclusion that statutory grounds for termination existed and that termination was in Phoebe’s best interest. Thus, even were we to grant a remand to Father, he would be unable to show that Counsel’s failure to call these witnesses prejudiced him. And without a showing of prejudice, his ineffective assistance claim would fail. See In re D.R., 2022 UT App 124, ¶ 16 (noting a parent must show “both (1) that counsel’s performance was deficient and (2) that [the parent] suffered prejudice as a result” (emphasis added) (cleaned up)). Accordingly, we deny Father’s request for remand. Cf. State v. Griffin, 2015 UT 18, ¶ 20, 441 P.3d 1166 (stating that, in the rule 23B context, “[i]t stands to reason that if the defendant could not meet the test for ineffective assistance of counsel, even if his new factual allegations were true, there is no reason to remand the case, and we should deny the motion”).

CONCLUSION

¶19 Father’s appeal presented one issue: whether Counsel provided ineffective assistance. Because this argument is contingent on Father’s request for a remand, and because we deny this request, we affirm the district court’s order in all respects.

Utah Family Law, LC | divorceutah.com | 801-466-9277


[1] We employ a pseudonym for the child.

[2] There is some dispute about how much time Phoebe spent with Father before Mother died. Father testified it was “four or five days,” but according to Grandparents, she spent just one day with him.

[3] Given the concern that the “rule 23B-like remand” procedure created in In re S.H., 2007 UT App 8, 155 P.3d 109, may conflict with the Utah Rules of Appellate Procedure, see In re C.M.R., 2020 UT App 114, ¶¶ 36–37, 473 P.3d 184 (Harris, J., concurring), and because it has been applied only in the child welfare context in juvenile court, we urge the Supreme Court’s Advisory Committee on the Rules of Appellate Procedure to consider lending formality to the procedure and to provide for its application to district court private termination proceedings as well as to juvenile court termination proceedings.

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What Are the Options for Someone Who Has Been Served Divorce Papers by Their Spouse Who Has Moved Away and No Longer Wants to Be With Them?

If you want to know your options and have the time to exercise them, then you need to meet with an attorney immediately to find out what the law requires of you, so that you don’t default (“default” means that you failed or refused to answer or defend against the divorce petition or complaint filed against you in court) and end up having judgment entered against for your default. You have a limited amount of time to respond to the petition/complaint for divorce before you will be in default. Choosing to procrastinate is not an option that would do you any goodGo consult with an attorney immediately. Bring the divorce papers you were served with to the appointment.

Utah Family Law, LC | divorceutah.com | 801-466-9277

https://motherinlawmysteriesandconflicts.quora.com/What-are-the-options-for-someone-who-has-been-served-divorce-papers-by-their-spouse-who-has-moved-away-and-no-longer-wan-8

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Kouri Richins’ Defense Files a Motion to Disqualify Prosecution, Alleging That Her 6th Amendment Rights Were Violated.

According to KUTV, Kouri Richins’ defense filed a motion on Friday, May 17, to disqualify the prosecution from the case.

To read more about this, click on this link:

https://kutv.com/news/local/kouri-richins-defense-skye-lazaro-ray-quinney-nebeker-files-motions-disqualify-prosecution-brad-bloodworth-eric-richins

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Second-Hand Testimony Is and Never Will Be Better Than the Witness’s Own Testimony in His/Her Own Voice

For lawyers and parents (and perhaps even commissioners and judges) who hate child custody determinations (temporary or otherwise) based upon proffer, I share this with you:

This court has previously expressed concern about determining custody based upon proffers given the seriousness and magnitude of child custody decisions.

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In Fullmer v. Fullmer, 761 P.2d 942 (Utah.Ct.App.1988), this court reviewed a permanent custody award entered based upon a proffer of witness testimony and the stipulated receipt of two child custody reports. In a footnote, we observed:

Although the parties stipulated that the testimony could be presented by proffer, and appellant does not argue that she was entitled to an evidentiary hearing, we note that an evidentiary hearing with all witnesses testifying would have been preferable. In a child custody case, we are convinced that witness demeanor and credibility are critical in ascertaining whether there has been a change of circumstances and what is in the best interests of the child. Any award of physical custody based solely upon what an attorney states a witness would have said and documentary evidence not subject to cross-examination is tenuous at best and subject to close scrutiny on appeal. Such deficiencies undermine the vitality of the trial court’s determinations.

Id. at 945 n. 1 (citations omitted); see also Hamby v. Jacobson, 769 P.2d 273, 278 (Utah.Ct.App.1989) (“[I]n cases involving the best interests of a child and competing claims by parents of the child, demeanor and credibility of witnesses is particularly critical, and use of proffers should be discouraged.”).

*****

[W]e reiterate that the use of proffers as a basis for child custody determinations, whether permanent or temporary, is discouraged.

(Montano v. Third Dist. Court for County of Salt Lake, 934 P.2d 1156, 1157-1158 (Utah Ct.App.1997).

The presumption that second-hand testimony “from” a child through someone other than the witness is generally better than hearing from the witness himself/herself is rationally and factually bankrupt. The idea that a judge (a former lawyer) charged with adjudicating a child custody dispute shouldn’t interview a child who is the subject of a custody dispute but should appoint a lawyer to do it (and in secret) instead is rationally and factually bankrupt as well.

In light of the sentiments expressed in the Montano decision, I ask you: why appoint PGALs and/or custody evaluators who (a) refuse to record their interviews of the children and of collateral sources for the record and (b) refuse to allow children to testify and/or refuse to interview children on and for the record in child custody dispute cases; and (c) continue to insist that second-hand testimony is better than the witness’s own testimony in his/her own voice?

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Taylor v. Elison, 2011 UT App 272, ¶ 6:

The bifurcated inquiry required by Utah law in custody modifications cases where the court must consider whether “there has been a substantial and material change in the circumstances upon which” custody was awarded and “whether a modification is in the best interests of the child.” See Hudema v. Carpenter, 1999 UT App 290, ¶ 22, 989 P.2d 491.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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Is It Common for Ex-spouses to Continue Supporting Each Other Financially and Emotionally After a Divorce? What Are Some Potential Solutions for This Situation?

See parent question. I am a divorce lawyer, and after a divorce case ends (meaning a decree of divorce has been issued and case essentially closed), I literally never know how the divorced couple interacts afterward unless their interactions result in the violation of provisions of the decree, or circumstances change so substantially and materially from what they were at the time the decree of divorce was entered that modifying the decree becomes either necessary or warranted.

If a court orders an ex-spouse to pay child support and/or alimony, then clearly that ex-spouse will be supporting the other financially, but this is due to a court order, not out of the goodness of that ex-spouse’s heart (in fairness, most people have no objection to supporting their own minor children and would do so whether they were “court-ordered” to do so).

That stated, it is my impression that post-divorce, most (most, not all) couples interact with each other very little, and only as much as necessary. Obviously, divorced parents of minor children almost always find themselves interacting with each other more than a couple without children or whose children are grown adults and not living with either parent because these divorced parents of minor children need to sign documents pertaining to the children, attend health care appointments and parent teacher conferences, performances and athletic events in which the children participate, etc.

Some ex-spouses end up voluntarily supporting an ex-spouse financially and/or emotionally because they didn’t want the divorce and still care for their ex-spouses and genuinely want to help them. Some provide support over and above what the court orders because it’s easier to provide the support than it is to ignore the ex-spouse’s constant wheedling and complaining, threats, and overall nuisance-causing.

Some people divorce in such an amicable way that they can truly care for each other yet conclude (often mutually) that they are better off friends than spouses. In those situations, they can and do care about and support each other as friends. I don’t know about you, but I am not in the habit of supporting my friends financially (with friends like those . . . ). Of course I’ll help in a time of emergency or need, I’ll buy a friend a birthday gift, pick up the tab for a meal, and things like that, but I don’t consider it part of a friendship to be paying a friend’s expenses with any degree of regularity. So a “friendly ex-spouse” who expects your friendship with him/her to include regular financial support of any amount is probably exploiting your good will.

For the most part, it is my experience that most ex-spouses do not voluntarily continue to support each other financially and emotionally after a divorce; it’s part of the divorce process to cut those ties.

A divorced person who feels “cheated” or “deprived” of an ex-spouse’s financial and/or emotional support after divorce because of divorce is someone who either does not understand divorce or its purpose.

If one is an innocent spouse who was nothing but loving and supporting and faithful and devoted during the married and his/her spouse divorced him/her due to no fault of the innocent spouse, well, honey, unless your ex comes to his/her senses and sincerely begs your forgiveness (and it is known to happen in rare, rare circumstances—not frequently enough to justify believing or even hoping it is likely to happen), then if your ex wants nothing more to do with you, you’re much better off finding love, affection, and support elsewhere.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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How to Refer to Numbered Paragraphs in Divorce and Family Law Cases

If you care to know: please don’t refer to the numbered paragraphs in divorce and family law cases as anything other than paragraph numbers. ¶

So it’s “paragraph 4”.

Not “section 4”.

Not “clause 4”.

Not “subdivision 4”.

Not “part 4”.

Not “article 4”.

Not “item 4”.

Not “segment 4”.

Just paragraph 4. ¶ 4.

Thank you.

Utah Family Law, LC | divorceutah.com | 801-466-9277

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