2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43


STATE OF UTAH, Appellee, v. JOSE FELIPE ARCE, Appellant.

Opinion No. 20220006-CA Filed March 28, 2024

First District Court, Logan Department The Honorable Brandon J. MaynardNo. 191100762

Freyja Johnson, Emily Adams, and Hannah Leavitt-Howell, Attorneys for Appellant, assisted by law student Ryder Seamons[1]

Sean D. Reyes and Marian Decker, Attorneys for Appellee, assisted by law student Rebecca Barker

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.


¶1        A domestic dispute ensued on an emotional evening after Jose Felipe Arce had returned home from attending the birth of a child he believed he fathered as a result of an affair. Arce does not dispute that an argument occurred. He denies, however, that he hit or choked his spouse (Wife). This appeal centers on Wife’s statements near the time of the event and her complete recantation at trial. Arce claims numerous errors, including that the trial court should not have allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury, a deputy should not have been allowed to vouch for a particular version of Wife’s testimony, the State and a witness should not have used the word “victim” 29 times, and these errors cumulatively prejudiced him. Although we do not endorse the approach taken by the trial court or the parties, we affirm the convictions.


¶2           The State charged Arce with, and the jury convicted him on, one count of aggravated assault (domestic violence) and five counts of domestic violence in the presence of a child. At the center of this appeal are the different versions of events as related by Wife. We recite the facts in a light most favorable to the jury’s verdict. See State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

Alleged Assault and Wife’s Statements in the Subsequent Hours and


¶3           In July 2019, Arce visited the hospital for the birth of a child whom both Arce and Wife believed he may have fathered with another woman. Wife described the day as an emotional one filled with tears. When Arce returned from the hospital, the couple decided to take their kids swimming at a hot springs resort. The couple talked about the difficult situation on the drive there, with more crying from Wife. On the drive home, their conversation escalated into an argument while the children slept in the back seat. After Arce asked for forgiveness, Wife said she had forgiven him for “many things” but “this was just too much.” Arce pulled the car over, and Wife said that the two “couldn’t be together anymore.” Wife later told police and neighbors that after pulling over, Arce hit and choked her.

¶4          Arce then drove the family home, and he told the children to go inside. Wife later told police and neighbors that, as they continued arguing, Arce hit her, threw her to the ground, kicked her, pulled her hair, tried to choke her, and threatened to hit her with a beer bottle.

¶5          At this point, Wife ran to her neighbor’s (Neighbor) home. Neighbor could hear Arce yelling as she opened the door to find Wife out of breath, shaking, and crying. Wife was in a t-shirt with no pants. Neighbor and her husband (Neighbor’s Husband) believed Wife was seeking safety. Wife told them Arce was trying to hurt her. She also told the couple she wanted Arce out of the house. She then recounted the earlier fight that had happened during the drive home, including that after arriving home Arce had hit and kicked her and tried to choke her. Neighbor did not see any injuries on Wife. Neighbor’s Husband said that he saw “a red mark kind of on her collarbone on her left side.”

¶6          Neighbor’s Husband, a deputy sheriff, called police, who arrived fewer than ten minutes later. The responding officer (Deputy) interviewed Wife at Neighbor’s home that evening. Deputy testified that Wife appeared “extremely distraught,” “frantic,” and “emotionally distressed” and that she continuously wiped her eyes and nose from crying. During the interview, Wife told Deputy that Arce both struck and choked her. She also recounted that after returning home, Arce dragged her out of the car by her hair, threatened to hit her with a beer bottle, choked her, and slapped her. Deputy observed that the area under Wife’s right eye was “somewhat swollen” and that she had “some sort of reddish mark” on her collarbone that looked like it was beginning to bruise.

¶7          By that time, Arce had left the scene. Wife signed a request for a no-contact order and, with her children, went to emergency housing that the Deputy arranged. Wife also completed a lethality assessment. In the assessment, Wife indicated that she thought Arce might try to kill her. In an additional comment section, Wife noted that “having [Arce] at the home was a concern of safety for her.”

¶8          The following day, a police officer (Detective) interviewed Wife at her work. Wife again recounted the events, including Arce choking her, slapping her, grabbing her hair, throwing her to the ground, and threatening to hit her with a bottle. Wife also filled out a written statement during the interview with Detective recounting these same allegations. The top of the statement gave the following warning, “You are notified that the statements you are about to make may be presented to a magistrate or a judge in lieu of your sworn testimony at a preliminary examination. Any false statements you make and that you do not believe to be true may subject you to criminal punishment as a Class A Misdemeanor.” Wife signed the statement.

¶9          That same night, Deputy interviewed Arce by phone. Arce explained that he and Wife had taken the children to the resort “to have a good day” but Wife kept bringing up the infidelity and birth of the baby, so the two argued. Arce said that during the argument, he went through Wife’s phone, saw messages from another man, and asked, “[W]ho the f*** is this person?” When asked if he hit or choked Wife, Arce responded that he did not recall. Arce did, however, say that there was a miscommunication between them and that there was “some pushing and shoving.”

Wife’s Recantation and Testimony at Trial

¶10 The same day that Detective interviewed Wife, Deputy listened to a voicemail from Wife asking that all charges be dropped. When Wife later spoke with Deputy on the phone, she again asked that the charges be dropped. Wife explained that Arce “had a good job and that she needed help with the five children.”

¶11 At trial, Wife testified consistently with the prior statements she had made to law enforcement and her neighbors, however, she insisted that she made up the allegations of domestic violence against Arce. From the stand, Wife said, “This is why I wanted to just come up here because I hear all the charges and it’s really very selfish of me, you know. So this is why I’m sitting up here and I’m saying what really happened.” Wife testified that all the events occurred as she explained to law enforcement and the neighbors but that Arce never hit or choked her. Wife testified that after telling Arce they could not be together anymore, she told him to take her home, and he did. Wife testified that she opened the car door and sat on the edge of her seat while they continued arguing and yelling at one another but no physical altercation occurred.

¶12 When the State began asking her questions about police arriving the night of the incident and what she told them, the court stopped the questioning and excused the jury. The court explained to Wife that she had a right not to incriminate herself and that doing so would open her up to prosecution. The State asserted several times, “We won’t charge her.” The State also served Wife with a written notice of use immunity for purposes of the trial.[2] And the court provided her with the opportunity to speak with an attorney. Subsequently, Wife was appointed counsel.

¶13 Following a recess, the State asked that Wife be declared a hostile witness, allowing it to ask her leading questions, which the court granted. After speaking with his client, Wife’s counsel advised the court that Wife would be exercising her Fifth Amendment right moving forward. The State argued that the immunity it had offered Wife would protect her and that it was not the State’s intent “to ask the Court to hold [Wife] in this case in contempt” for refusing to testify. Wife’s counsel argued that the notice of use immunity was inadequate to protect her because it expressly did not grant immunity against a future perjury prosecution. The State again asked the court to treat Wife as a hostile witness. Arce’s counsel objected, arguing that the State knew weeks in advance that Wife might invoke her Fifth Amendment right. The State argued that knowing what Wife would do for weeks in advance was “a little bit of a stretch” and that its grant of use immunity was sufficient.

¶14        During further argument over whether to allow the State to treat Wife as a hostile witness, the State again said it would not seek to have the court hold her in contempt. The court ultimately granted the State’s request and received affirmation again from the State that it would not ask the court to hold Wife in contempt if she refused to testify.

¶15        The next day, the State retracted its written immunity offer and explained that it planned to ask Wife questions to which she could “choose to invoke the Fifth or to respond.” Wife’s counsel objected, arguing, “[T]he State’s going to try to . . . present their case by asking those questions and hearing the Fifth . . . . [T]hat’s just them trying to testify to the jury by the questions they’re asking.” The court disagreed, explaining that anything the State said was not evidence and that Wife could not make a “blanket” invocation of her Fifth Amendment right.

¶16 When Wife took the stand again, she invoked the Fifth Amendment 47 times in response to the State’s questions.[3] The State’s questions included asking Wife about the same things she had addressed the day before, prior to invoking her constitutional right to silence. Arce’s counsel did not object to or seek to limit the State’s leading questions or Wife’s invocations; neither did he request a mistrial.

Other Testimony at Trial

¶17 During the trial, the State called Neighbor, Neighbor’s Husband, Deputy, and Detective to the stand; each recounted the events and gave consistent testimony of the statements Wife made to them concerning the events during the evening in question— including the physical abuse she allegedly experienced at the hands of Arce.

¶18 During Deputy’s examination, the State asked, “And so ultimately what did your investigation lead you to believe happened that night?” Defense counsel made no objection. Deputy responded, “Based off all my observations and interview, I believe that the victim had been struck and choked and that there was a domestic violence assault that occurred.” The State then asked, “And I just want to emphasize, why is it that you believed that this truly happened?” Defense counsel again made no objection. Deputy answered,

I believe it truly happened given a number of things. Mainly, when I spoke to [Wife], she appeared to be honest and genuine in the emotion that she was describing things with was clearly emotional distress, upset that I’ve seen. And not every case is the same. I’ve seen other people who have been victims of assault act similar, so that’s why I believed it. She appeared to be honest and genuine.

¶19 During Detective’s testimony, the State moved to admit into evidence Wife’s written statement that was given under penalty of perjury, which the court allowed.

¶20 The State also called two expert witnesses. A clinical psychologist testified about patterns of domestic violence and that individuals experiencing abuse frequently stay in the relationship and/or recant their previous stories. And a pediatric nurse practitioner testified about strangulation, including that in over 50% of strangulation cases there are no visible injuries.

¶21 Throughout the trial, the State, Deputy, and Detective referred to Wife as “the victim” 29 times. And the State and its witnesses—primarily the clinical psychologist—used the term “victim” or “victims” generally an additional 45 times. The State also referred to Wife as the “alleged victim,” primarily during jury selection but also sporadically throughout the trial.

Closing Arguments and Verdict

¶22        In closing arguments, the State argued that the jury should believe Wife’s original statements to her neighbors and police as those were made instinctually to keep her family safe from a threat rather than out of “selfish[ness] or insincer[ity].” The defense argued that Wife had every reason to hate Arce but she wanted to set the record straight about her lies concerning the events of that night and that the State’s case fell apart without her lies.

¶23        During deliberation, the jury asked for access to the State’s “questions on day 2 to [Wife] when she pled the fifth.” The court did not grant the request.

¶24        The jury convicted Arce on all charges. Arce now appeals.


¶25 Arce raises three issues on appeal. First, Arce argues that the trial court incorrectly allowed the State to compel Wife to invoke her Fifth Amendment right 47 times in front of the jury. We give trial courts “broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb [a trial court’s] ruling only for abuse of discretion.” State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (cleaned up). But the trial court must correctly interpret and apply the law. Id. ¶ 30. We review “the legal questions underlying the admissibility of evidence” for correctness. Dierl v. Birkin, 2023 UT App 6, ¶ 15, 525 P.3d 127 (cleaned up), cert. denied, 527 P.3d 1107 (Utah 2023).

¶26 Second, Arce argues that he received constitutionally ineffective assistance of counsel when his counsel (1) did not seek to limit or remediate the continued questioning of Wife by objecting, moving to strike both the questions and invocations, or asking for a curative instruction; (2) failed to object to Deputy improperly opining on and vouching for the credibility of Wife’s report the night of the incident; and (3) failed to object to the State and witnesses referring to Wife as “the victim” 29 times during the trial. “When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” State v. Reid, 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied, 432 P.3d 1225 (Utah 2018).

¶27 Finally, Arce argues that under the cumulative error doctrine, the evidentiary error and ineffective assistance of counsel Arce received should undermine our confidence in the outcome of the trial. “We will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Lopez, 2019 UT App 11, ¶ 22, 438 P.3d 950 (cleaned up).


  1. Evidentiary Ruling

¶28 Arce argues that the trial court improperly overruled Wife’s counsel’s objection to the State questioning Wife despite knowing that she would invoke her Fifth Amendment right. Here, the trial court did not expressly say why it allowed the State, knowing Wife would invoke her constitutional privilege, to continually examine Wife. After Wife met with counsel and determined that she would invoke her Fifth Amendment right moving forward, the State asked the court to declare Wife a hostile witness and allow the State to continue examining her with leading questions. Wife’s counsel objected to declaring her hostile, arguing that the State already knew she would invoke her right for each question, which would allow the State, in Wife’s counsel’s words, to “present their case by asking those questions and hearing the Fifth” and to offer testimony “to the jury by the questions they’re asking.” The court responded that “anything [the State] says isn’t evidence, so it doesn’t matter.” And Wife’s counsel responded that the court should not allow it precisely because the State’s questions would not be evidence. The court disagreed and determined that the State could ask questions and that Wife could invoke her right to every question if she wanted to but she had to testify “if it [had] nothing to do [with a topic] that would incriminate her.” The court further determined that Wife’s invocation of her Fifth Amendment right could not be invoked in a blanket fashion and that she would have to invoke it for each question, as there may be some she could answer.

¶29 The State argues that regardless of the court’s reasoning, the court did not err because Wife waived her privilege by testifying earlier and recanting her story.[4] We note that the State did not make this argument during trial. Alternatively, the State argues that Wife never had the privilege to begin with because the State provided her with immunity.[5]

¶30 Notwithstanding each parties’ arguments, our review of the record indicates that Arce did not preserve this issue. It is “well within our prerogative to raise a preservation issue on our own initiative when it provides an alternative basis for affirmance, even if the State failed to brief the preservation argument.” State v. Malo, 2020 UT 42, ¶ 20 n.7, 469 P.3d 982. In Cook Associates, Inc. v. Warnick, 664 P.2d 1161 (Utah 1983), our supreme court confronted “[w]hether an objection by one party properly preserves an objection on appeal as to another party.” Id. at 1164. The supreme court followed what “[v]irtually every other jurisdiction that has considered the question has concluded,” which is that “an objection . . . by one or more parties at trial does not inure to the benefit of other parties who do not join in the objection.” Id. at 1164–65. In State v. Calliham, 2002 UT 86, 55 P.3d 573, two brothers charged with murder were tried together. Id. ¶¶ 1–3. Following their convictions, one brother (Brother 1) appealed. Id. ¶¶ 18–19. As part of his appeal, Brother 1 argued that the trial court’s decision to admit specific evidence was an error that violated his constitutional rights. Id. ¶ 32. However, our supreme court held that this issue was not preserved for appeal, as it was the other brother (Brother 2) who had objected—an objection which Brother 1 did not join at trial. Id. ¶ 33. “[Brother 1] did not join in [Brother 2’s] objections on the record or make any objection of his own,” thus preventing him from claiming on appeal that it prejudiced him or undermined his constitutional rights. Id.

¶31 Similarly, in the case before us, Arce was not the one who objected to Wife taking the stand, knowing she would invoke her Fifth Amendment right for every question—it was Wife’s counsel who made the objection. Arce did not join that objection.[6]

Therefore, as in Calliham, Arce has not preserved the right to now claim on appeal that the court erred in its decision to allow Wife to testify, which in turn allowed the jury to hear her invocations 47 times.[7]

¶32        And the issue needed to be “preserved in order to give the trial court an opportunity to address the claimed error, and if appropriate, correct it.” Kell v. State, 2012 UT 25, ¶ 11, 285 P.3d 1133 (cleaned up). Here, the trial court had no such opportunity. It is readily evident from our review of the record that the trial court was not focused on the impact these Fifth Amendment issues would have on Arce. Instead, the trial court ruled on this issue through the lens of its impact on Wife. Had Arce objected, the trial court may have fully engaged in an analysis of whether Wife’s Fifth Amendment right was waived or abandoned as the State suggests. But Arce made no such objection, and therefore the court engaged in no such analysis.

¶33        “As a general rule, claims not raised before the trial court may not be raised on appeal,” and it is “well-established” that this “preservation requirement applies to every claim, including constitutional questions.” Conner v. Department of Com., 2019 UT App 91, ¶ 48, 443 P.3d 1250 (cleaned up). Despite Arce’s arguments that he preserved this issue, the record does not support his assertions, as “a party must raise [the issue] before the [trial] court specifically, in a timely manner, and with support by evidence and relevant legal authority, such that the issue has been presented to the trial court in such a way that the trial court has an opportunity to rule on it.” Id. (cleaned up). As discussed, the record does not reflect an objection from Arce on the issue but instead from Wife, which did not allow the court to review the issue as it pertains to Arce. Therefore, the issue is not properly preserved, and we do not consider the merits of his claim.

  1. Ineffective Assistance of Counsel

¶34        “To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong Strickland test: (1) counsel’s performance was objectively deficient and (2) the deficient performance resulted in prejudice.” State v. Fleming, 2019 UT App 181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 US 668, 687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “[D]eficient performance is not determined in a vacuum; rather, it involves asking whether the strategy [counsel] employed was that of a reasonable, competent lawyer in the real-time context” of a trial. State v. Wilkes, 2020 UT App 175, ¶ 24, 479 P.3d 1142, cert. denied, 485 P.3d 944 (Utah 2021). “However, even where a court cannot conceive of a sound strategic reason for counsel’s challenged conduct, it does not automatically follow that counsel was deficient. . . . [T]he ultimate question is always whether, considering all the circumstances, counsel’s acts or omissions were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d 350. And a defendant establishes prejudice by showing “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Gonzalez, 2021 UT App 135, ¶ 8, 501 P.3d 1205 (cleaned up). “That is, the defendant’s showing must undermine our confidence in the outcome.” Id. (cleaned up). The impact of such alleged errors must “be a demonstrable reality.” Id. (cleaned up).

¶35        “Because both prongs of the Strickland test must be met to establish ineffective assistance of counsel, we need not always address both prongs.” Fleming, 2019 UT App 181, ¶ 9 (cleaned up). “And if it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice that course should be followed.” Gonzalez, 2021 UT App 135, ¶ 7 (cleaned up). Given the likelihood that similar events to those of this case can and will arise before the trial courts of this state, we address counsel’s alleged deficient performance, although we ultimately determine that Arce’s claims fail for lack of prejudice.

  1. Deficient Performance
  2. Invoking the Fifth Amendment

¶36 In addition to Arce’s arguments already discussed above regarding Wife’s invocation of her Fifth Amendment right, Arce argues that his counsel acted deficiently by not seeking to limit or remediate the State’s continued leading questions and Wife’s invocations by objecting, moving to strike both the questions and invocations, or asking for a curative instruction. Based on the reasoning in Mitchell v. United States, 526 U.S. 314 (1999), and In re Flint Water Cases, 53 F.4th 176 (6th Cir. 2022), competent counsel could reasonably choose not to take any of these actions, as Wife had waived her Fifth Amendment privilege by having voluntarily testified about the matter in question. A “witness . . . may not testify voluntarily about a subject and then invoke the privilege against self-incrimination when questioned about the details.” Mitchell, 526 U.S. at 321. “When the witness testifies, the privilege is waived for the matters to which the witness testifies.” In re Flint Water Cases, 53 F.4th at 193 (cleaned up). Thus, Arce’s counsel, and correspondingly the trial court, could have concluded that Wife did not have the right to invoke the privilege. Therefore, we determine that Arce fails to show deficient performance.[8]

¶37 Arce claims his counsel should have objected and pointed the court to rule 403 (excluding evidence which is substantially more prejudicial than probative), rule 510(c) (disallowing comment by a judge or counsel about, or a factfinder making an inference from, the invocation of a privilege), or rule 611(a) (allowing a court to control the examination of witnesses so as to avoid wasting time or the harassment or embarrassment of a witness) of the Utah Rules of Evidence. Arce makes no effort, however, to provide us with the context of Wife’s 47 invocations or the depth of her earlier testimony.[9] While Arce discusses Wife’s trial testimony prior to the court’s interruption to allow her to consult her counsel, he provides the court no comparison of that testimony with the subject matter of the questions asked on cross-examination when she began invoking the Fifth Amendment. As a result, the briefing leaves us with no understanding about whether all 47 invocations were directly addressing matters about which Wife had already testified—particularly her recantation. Assuming the questions were simply cross-examination of statements made earlier in trial, Arce’s counsel would have no basis for an objection because the privilege would be waived. Furthermore, without an understanding of the depth of Wife’s earlier testimony, we cannot gauge whether 47 invocations corresponded in an impermissible or potentially prejudicial way to Wife’s prior trial testimony. Within the confines of the briefing provided to us, we cannot fault Arce’s counsel for failing to object or make other efforts to limit the testimony.

¶38        Given that there is an obvious basis to believe that Wife no longer possessed a Fifth Amendment privilege and where the briefing does not delineate any context for the questions for which the privilege was invoked, Arce has not overcome the presumption that his counsel acted reasonably, and we cannot conclude that Arce’s counsel was objectively deficient in his representation. State v. Hart, 2020 UT App 25, ¶ 20, 460 P.3d 604 (stating that to prove deficient performance a defendant must overcome a “strong presumption that his trial counsel rendered adequate assistance” (cleaned up)), cert. denied, 462 P.3d 805 (Utah 2020). We acknowledge that there certainly could be circumstances where compelling a witness to invoke a privilege 47 times would be troubling, but we can reach no conclusion about counsel’s failure to object to these questions here.

  1. Witness Opining and Vouching

¶39        Arce further argues that his counsel performed deficiently by failing to object to Deputy opining on and vouching for the credibility of Wife’s statement the night of the incident. Rule 608(a) of the Utah Rules of Evidence “permits testimony concerning a witness’s general character or reputation for truthfulness or untruthfulness but prohibits any testimony as to a witness’s truthfulness on a particular occasion.” State v. King, 2010 UT App 396, ¶ 44, 248 P.3d 984 (cleaned up); see also State v. Adams, 2000 UT 42, ¶ 19, 5 P.3d 642 (detective testifying “he did not believe [the victim] was coached” was inadmissible vouching); State v. Jones, 2020 UT App 161, ¶ 14, 478 P.3d 1055 (per curiam) (“[A]dmission of testimony that bolsters the credibility of another witness’s testimony on a particular occasion is improper.”); id. ¶ 18 (officer testifying regarding interview techniques for domestic violence victims did not violate rule 608 because he did not opine on the victim’s truthfulness on a particular occasion); State v. Lewis, 2020 UT App 132, ¶ 26, 475 P.3d 956 (police sergeant describing variations he sees in victims’ statements when multiple accounts are given was not bolstering, as “he did not directly opine on [the victim’s] credibility”); State v. Cegars, 2019 UT App 54, ¶¶ 23–24, 440 P.3d 924 (school counselor testifying that she did not believe the victim would fabricate allegations was inadmissible bolstering); State v. Vail, 2002 UT App 176, ¶¶ 15, 17, 51 P.3d 1285 (detective testifying that two victims of child sexual abuse “exhibited the indicators that she equated with trustworthiness” was inadmissible bolstering); State v. Stefaniak, 900 P.2d 1094, 1095 (Utah Ct. App. 1995) (social worker testifying that a victim of abuse “seemed to be quite candid” in an interview was inadmissible vouching (cleaned up)). For example, an officer cannot comment on whether a witness appeared “to be genuine” during an interview, as it is a direct comment on the witness’s truthfulness and clearly violates rule 608. State v. Bragg, 2013 UT App 282, ¶ 31, 317 P.3d 452 (cleaned up). We emphasize again today that the State’s use of a law enforcement officer’s testimony for bolstering and vouching in this manner is inappropriate. We perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

¶40 But even so, Arce can prevail only if he establishes both deficient performance and prejudice. And for the reasons set forth in Part II.B, we conclude that he was not prejudiced by this deficient performance.

  1. Referring to Wife as “the Victim”

¶41        Finally, Arce argues that his counsel performed deficiently by failing to object to the State and witnesses referring to Wife as “the victim” 29 times in front of the jury. Our supreme court “recognize[s] the gravity of referring to witnesses as victims during a trial.” State v. Vallejo, 2019 UT 38, ¶ 102, 449 P.3d 39. In cases, such as the one before us, “where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness’s testimony—the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. Though in this case we do not exclusively rely on such testimony because there was a “sort of reddish mark” on Wife’s collarbone and Arce told Deputy there was “some pushing and shoving,” we still restate today that the action of referring to the complaining witness as “the victim” by anyone in front of the jury is inappropriate. Again, we perceive no strategic reason that Arce’s counsel would reasonably fail to object to this testimony.

  1. Prejudice

¶42        Ultimately, Arce has not shown that any of these alleged errors prejudiced him. There is not a reasonable probability that but for Arce’s counsel failing to object further to the State’s questioning of Wife, moving to strike, or asking for a curative instruction, the result of Arce’s trial would be different. As mentioned, the jury heard testimony from four witnesses, each of whom told the same story, namely, that Wife said Arce hit and choked her that night. The testimony of these four witnesses matched Wife’s own words in the statement she gave to Detective. Furthermore, the reason Wife provided to Deputy for dismissing the charges was not that she had lied but that she needed Arce to keep his job as well as his help with their children. As we point out above, even Arce in his statement to Deputy admitted there was “some pushing and shoving,” which is inconsistent with Wife’s recantation. And Arce did not explicitly deny that he hit, kicked, or choked Wife, instead stating only that he could not recall doing so. Most reasonable jurors would think that physical assault is something that one would remember having committed. Furthermore, and perhaps most convincingly, Wife’s own statement to Detective was entered into evidence for the jury to read. In short, finding that none of these alleged errors undermines our confidence in the outcome of this case, each of Arce’s claims of ineffective assistance of counsel fails for lack of prejudice. Moreover, because none of these alleged errors were sufficiently prejudicial alone, we, for the same reason, conclude that the errors do not cumulatively undermine our confidence in the outcome of the trial.[10]


¶43 Arce’s claim that the court erred by allowing the State to repeatedly compel Wife to invoke her Fifth Amendment privilege in front of the jury fails because the issue was not preserved. Furthermore, Arce’s claims of ineffective assistance of counsel fail because his counsel’s failure to object to Wife’s invocations, Deputy’s vouching for Wife’s credibility, and repeated references to Wife as “the victim” do not present a reasonable probability that but for Arce’s counsel’s failure the result of the proceeding would have been different. We therefore affirm Arce’s convictions.

Utah Family Law, LC | | 801-466-9277

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

[2] A “grant of use immunity [prohibits] any prosecutorial use of [a witness’s] testimony or evidence gained from it” against the witness. State v. Morris, 2017 UT App 112, ¶ 17, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017).

[3] The State argues that she invoked the Fifth Amendment 45 times, but the discrepancy of two invocations is not dispositive in this case, so we will use Arce’s number moving forward.

[4] Though we make our decision on preservation grounds, it appears the State is correct that a witness cannot testify about a subject and later invoke a Fifth Amendment privilege in order to avoid cross-examination on that same topic. See Mitchell v. United States, 526 U.S. 314, 321 (1999); In re Flint Water Cases, 53 F.4th 176, 193 (6th Cir. 2022). This issue is addressed further below. See infra ¶ 36.

[5] The State argues that a valid claim of privilege “turns in part on the likelihood of future prosecution.” A witness may not “employ the privilege to avoid giving testimony that he simply would prefer not to give,” Roberts v. United States, 445 U.S. 552, 560 n.7 (1980); instead, the witness must face real—not remote or speculative—dangers, Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 478 (1972). Therefore, a grant of immunity nullifies the witness’s privilege as it forecloses the possibility of subsequent prosecution. State v. Morris, 2017 UT App 112, ¶ 18, 400 P.3d 1183, cert. denied, 409 P.3d 1049 (Utah 2017). Here, the State argues that while it did withdraw the written immunity offer, the offer was “irrelevant” as the State put on the record several times that it would not seek to have the court hold Wife in contempt for refusing to testify. We do not agree and fail to understand how a promise not to seek to have a trial court hold Wife in contempt is sufficient to rise to the level of granting her “effective blanket immunity,” as the State argues. Wife still faced the very real danger of prosecution for perjury, for which the State offered her no protection. Thus, the State did not provide Wife with immunity—either written or through promises not to charge her with contempt—and Wife’s Fifth Amendment privilege remained intact. However, the State is likely correct that the right had been waived for subjects about which she freely had already testified. And, as discussed, this issue was not preserved, so there is no need for further consideration of whether allowing the State to continue questioning Wife was an error and, if so, whether there was a reasonable likelihood of a more favorable outcome for Arce absent the questioning.

[6] Arce acknowledges that it was Wife’s counsel rather than his own who made the objection to Wife taking the stand knowing she would invoke her Fifth Amendment right. Despite this, Arce argues that the issue is preserved by primarily relying on Kell v. State, 2012 UT 25, 285 P.3d 1133. But Kell is distinguishable from the present case. In Kell, the question was whether an issue was preserved when the State opposed a criminal defendant’s rule 60(b) motion and the criminal defendant did not respond to the State’s arguments yet later sought to appeal the decision. Id. ¶¶ 9– 10. The State and a criminal defendant are not in an analogous adversarial position to the criminal defendant and nonparty witness, Wife, present here. Kell is simply inapposite.

[7] Arce does not claim the application of any exception to preservation.

[8] Arce points to State v. Bond, 2015 UT 88, 361 P.2d 104, for us to consider. But Bond is not particularly helpful here. The witness in Bond did not attempt to invoke his Fifth Amendment privilege to avoid answering a question regarding a subject about which he had testified previously. Id. ¶ 10Also, the analysis in Bond must be viewed in context. In Bond, the Utah Supreme Court was reviewing the denial of a motion for a mistrial—a trial court decision reviewed under an abuse of discretion standard—and an allegation of prosecutorial misconduct. Id. ¶¶ 13, 22. Thus, unlike the case before us, Bond does not address these issues as evidentiary rulings.

[9] We acknowledge that Arce has appended a transcript containing the invocations to his brief. But beyond the appendix, Arce’s brief makes no attempt to address the context of the invocations—referring to them only as a whole rather than providing any information as to the subject matter of the questioning that provoked them. Arce does not attempt to explain, for example, if one, two, or three questions might be permissible. Neither does he explain at which point the line would have been crossed to render his counsel’s inaction objectively unreasonable.

[10] “The cumulative-error doctrine requires us to reverse if (1) we determine, or assume without deciding, that two or more errors occurred and (2) we determine that the cumulative effect of those errors undermines our confidence that a fair trial was had.” ConocoPhillips Co. v. Utah Dep’t of Transp., 2017 UT App 68, ¶ 30, 397 P.3d 772.

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Is this a first principle?

If you can get a no-fault divorce, meaning that you can just walk away from a marriage because you don’t want it anymore, why could that same person seek alimony?

You have a right to rescind the marriage contract. But with rights come responsibilities. The right to walk away from a marriage on no-fault grounds must entail the corresponding responsibility to take the bitter with the sweet. No more marriage means no more spouse, and no more obligation of your ex-spouse to support you financially. Isn’t rescinding the marriage contract on no-fault grounds and still demanding that the other party continue to perform as though nothing has changed just licentiousness?

Utah Family Law, LC | | 801-466-9277

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2024 UT App 40 – State v. Heward – plea agreement, ineffective assistance

2024 UT App 40 – State v. Heward


Opinion No. 20221055-CA Filed March 28, 2024 Fourth District Court, Provo Department

The Honorable Robert A. Lund No. 201400462

Scott F. Garrett and Jessica Griffin Anderson, Attorneys for Appellant

Sean D. Reyes and Andrew F. Peterson, Attorneys for Appellee



¶1        Benjamin Lee Heward pled guilty to two charges of aggravated sexual abuse of his two minor daughters. As part of his plea agreement, the State and the victims promised to “affirmatively recommend” a prison sentence of two concurrent terms of six years to life. At sentencing, the prosecutor argued against probation and recommended a sentence of six years to life, but the two victims testified they were having second thoughts about the arguably lenient sentence, a change that the prosecutor attempted to explain. Ultimately, the court followed the recommendation of Adult Probation and Parole (AP&P), sentencing Heward to fifteen years to life on each count, with the sentences to run concurrently. Heward now maintains that the prosecutor breached the plea agreement when he made statements about probation and the feelings of the victims, and he asserts that the district court should have acted sua sponte to remedy the situation. Heward also asserts that his attorney rendered ineffective assistance in failing to object to the prosecutor’s comments. We reject Heward’s claims of error and therefore affirm.


¶2          Heward was charged with ten counts of aggravated sexual abuse of a child and one count of rape of a child for the admitted abuse he inflicted on his two minor daughters over a number of years. Heward pled guilty to two of the aggravated sexual abuse charges: (1) rubbing his clothed genitals over the clothed genitals of his older daughter in an act of simulated sexual intercourse and (2) rubbing his younger daughter’s genitals skin to skin with his hand.

¶3          As part of the plea, the State agreed to dismiss the rape charge and the other eight aggravated sexual abuse charges. In addition, the plea agreement indicated that the “State and the victims” would “affirmatively recommend” a prison sentence of six years to life and lifetime sex-offender registration. In contrast, AP&P recommended that Heward be sentenced to fifteen years to life on each count.[1]

¶4          At sentencing, the prosecutor stated, “I know that based on . . . Heward’s statement and the recommendation from his sex offender treatment therapist he’s going to be asking for probation.” The prosecutor acknowledged there was a “very, very narrow exception” to the mandatory imprisonment required for aggravated sexual abuse of a child. See Utah Code § 76-5-404.3(7) (stating that imprisonment is mandatory). That exception allows a court to “suspend execution of sentence and consider probation to a residential sexual abuse treatment center only if,” along with numerous other conditions, the perpetrator’s offense “did not cause the child victim severe psychological harm.” Id. § 76-5­406.5(1)(b). To this point, the prosecutor argued,

Heward needs to show it’s in the best interest of the public and specifically the child victims that the Court should sentence him to probation instead. He can’t show that, Judge. He needs to show that these offenses did not cause the child victim severe psychological harm. He cannot show that, Judge. It’s clear based on the victim impact statements from both [of Heward’s daughters] that they are suffering severe psychological harm, continued psychological harm for what their father did to them.

¶5          The prosecutor then emphasized that Heward’s abuse would make it “extremely difficult” for his victims to have a “sense of peace” and that they were “going to be affected” for “the rest of their lives” because Heward “used them as sexual objects.” The prosecutor also pointed out that certain sex offenses involving children in Heward’s juvenile record indicated that he represented a danger to the community. The prosecutor concluded by saying, “He’s going to tell the Court right now that he should be granted probation because he’s not a threat to the community. The Court should disregard that.”

¶6          The prosecutor then gave Heward’s victims time to speak. The older daughter stated that Heward’s abuse had a “devastating impact” on her life, that she was “still suffering from his actions,” and that she was “always having to look over [her] shoulder making sure he’s not around” her. This daughter, after recounting the “painful memories” and her continuing trauma, stated that Heward was “being shown undue mercy . . . with a plea agreement.” She also noted that Heward had violated protective orders “[a]gain and again” and even at the sentencing hearing, he had “force[d]” and “manipulated” her and her sister “into an embrace with him.”

¶7          The younger daughter also spoke. She said that as a result of the abuse, she struggled with depression and anxiety. She shared that she continued to “feel uncomfortable leaving [her] room” because she was afraid that she would “get raped and sexually assaulted again.” She further revealed that whenever someone touches her “unexpectedly,” she is “startled” and “can physically feel it all happening again.”

¶8          After Heward’s victims finished speaking, the prosecutor expressed that he wanted “to talk about what the State’s recommendation [was] going to be.” He explained that “[i]n speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender” registration. Then the following exchange took place:

Prosecutor: I spoke with [the victims] this morning, if they still feel the same way, understanding that I’m bound to the recommendation of 6 to life, that I thought it was important for the Court to know where the victims stand today. I asked them how they still felt about the 6 to life. They told me—

Court: May I say, . . . you bound yourself to 6 to life?

Prosecutor: Yes, sir, that is the State’s recommendation.

Court: Okay, . . . you need to be very careful you don’t say anything now that could be you trying to argue against that deal. So be circumspect in your comments.

Prosecutor: Judge, I’m not arguing that it should be anything else. I think the Court should be fully informed about where the victims are. The victims aren’t party to this agreement, but victims do have a right to be heard, and that can be through their own statements or through that of the prosecutor. They felt like they were manipulated by the defendant to feel sorry for him, and the Court did hear those statements today. They felt manipulated, and that’s why they wanted 6 to life. That’s the reason for the plea offer that was given, Judge. The State is still bound and still recommending 6 to life.

¶9          Heward’s attorney (Counsel) then spoke about mitigating factors that the court should consider in sentencing. Counsel agreed with the State that Heward “probably [was] not qualified” for the “statutory exception that allows for probation.” Counsel then concluded, “We would concur with the recommendation of the two concurrent 6 years. That’s what we’ve all agreed to, and that’s what I’d recommend.”

¶10 Other witnesses, including Heward’s mother and his therapist, spoke about various mitigating factors. And Heward himself spoke, stating that he was “not asking for probation.”

¶11        The court was not persuaded by the recitation of mitigating factors:

[I]t evidences a higher level of depravity when the victims are your biological children, and this conduct went on for years. . . . [T]hat’s also an aggravating circumstance. It’s an aggravating circumstance that you violated the protective order.

Frankly, based on the information that’s before me, it seems to me that you’ve minimized the conduct that you’ve been involved in. I’d be more inclined to accept the versions that [your daughters] provide in terms of what happened.

Based on all of that, I’m going to follow the AP&P recommendation. I don’t think that I have the discretion to sentence you to less than 15 years in prison. That’s the sentence of the Court. You’ll be sentenced to [two concurrent terms] of 15 years to life in the Utah State Prison.

¶12        Heward appeals.


¶13        Heward first argues that the “prosecutor breached the plea agreement by failing to affirmatively recommend a prison sentence of six years to life and by implying the State regretted entering into the plea agreement.” Heward acknowledges that this claim was not preserved and asks that it be reviewed under both plain error and ineffective assistance of counsel. See State v. Shaffer, 2010 UT App 240, ¶ 9, 239 P.3d 285 (recognizing that an unpreserved alleged breach may be reviewed for plain error and ineffective assistance of counsel). To demonstrate plain error, Heward “must show that: (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) absent the error, there is a reasonable likelihood of a more favorable outcome.” State v. Samul, 2018 UT App 177, ¶ 10, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018). And “when a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Id. ¶ 11 (cleaned up).

I. Plain Error

¶14 Heward complains that the prosecutor breached the plea agreement in two separate but related ways. First, Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life as indicated in the plea agreement. Second, Heward argues that the prosecutor then “compounded” the breach by bringing up the victims’ apparent change of heart about the plea agreement, implying that the State regretted entering the plea agreement. And Heward asserts that the district court “should have been aware of the errors the prosecutor made.” In such cases, our court has focused on whether a prosecutor’s statements were egregious enough to require a district court to act sua sponte to remedy the situation. See State v. Hummel, 2017 UT 19, ¶ 119, 393 P.3d 314 (“[N]one of [the prosecutor’s] statements was so egregiously false or misleading that the judge had an obligation to intervene by raising an objection sua sponte.”); State v. Hosman, 2021 UT App 103, ¶ 38, 496 P.3d 1162 (questioning whether a prosecutor’s statements were so egregious that it constituted plain error for the court to fail to intervene sua sponte to remedy the harm), cert. denied, 502 P.3d 270 (Utah 2021).

¶15 To succeed on this claim, Heward “must prove that the State actually breached the plea agreement, that the breach should have been obvious to the district court, and that had the district court recognized and remedied the breach, there is a reasonable likelihood that [his] sentence would have been more favorable.” State v. Gray, 2016 UT App 87, ¶ 15, 372 P.3d 715, cert. denied, 379 P.3d 1185 (Utah 2016). And “if any one of these requirements is not met, plain error is not established.” Id. (cleaned up).

¶16        “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971); accord State v. Lindsey, 2014 UT App 288, ¶ 16, 340 P.3d 176. Accordingly, a “plea agreement is breached when the State fails to act in accord with its promise.” State v. Samulski, 2016 UT App 226, ¶ 13, 387 P.3d 595, cert. denied, 390 P.3d 725 (Utah 2017). However, “when a defendant alleges that the State violated a plea agreement by making inappropriate statements at sentencing, as [Heward] does here, we consider the prosecutor’s statements in the context of the entire hearing.” Gray, 2016 UT App 87, ¶ 16 (cleaned up).

  1. Affirmative Recommendation

¶17        Heward argues that the prosecutor failed to “affirmatively recommend” the prison sentence of six years to life agreed to in the plea. The gist of Heward’s argument is that “[i]n order to affirmatively recommend a sentence of six years to life, the prosecutor was required to make an effort to position the recommendation as one that is ‘in the interests of justice.’” (Quoting Utah Code § 76-5-404.3(4)(b).) Heward asserts that, instead, the prosecutor “utterly failed to make an argument or present the judge with any information that a sentence of six years to life was in the interests of justice.” Heward complains that the prosecutor “focused solely” on the limited discretion of the judge, certain aggravating factors (namely, the psychological harm suffered by the victims, Heward’s juvenile record, and Heward’s alleged violation of a protective order), and the victims’ alleged withdrawal of support for the plea agreement. “By emphasizing only aggravating factors in his argument,” Heward asserts, “the prosecutor failed to affirmatively recommend a sentence of six years to life,” resulting in “a clear breach.” We are not persuaded that any breach, let alone a clear one, occurred when the prosecutor highlighted these factors.

¶18        First, the prosecutor’s statements about aggravating factors were made not in reference to the plea agreement but in the context of arguing that Heward should not be offered probation under the limited statutory exception to mandatory imprisonment. By pointing to the severe psychological harm inflicted on the victims and Heward’s juvenile record, the prosecutor was explicitly arguing that Heward was not eligible for probation under the statute. And Heward’s violation of the protective order was also mentioned in the context of denying probation—specifically that Heward should start serving his sentence immediately. As the State points out, the prosecutor’s remarks about the protective order violations “weren’t about what Heward’s sentence should be, but when he should begin to serve it.” Arguing against probation and for immediate incarceration— even if it necessarily required the prosecutor to reference some aggravating factors relevant to other aspects of Heward’s sentencing—was consistent with the State’s recommendation of six years to life. After all, the plea agreement made it perfectly clear that the State would “affirmatively recommend” a prison term, a recommendation that obviously entitled the prosecutor to argue—even forcefully—against probation by highlighting specific reasons Heward did not qualify for probation.

¶19 Second, and more to the point, an “affirmative recommendation” does not require any particular measure of enthusiasm for an agreed-upon sentencing recommendation. While a prosecutor may not “undermine” a promised sentencing recommendation by expressing “personal reservations at the sentencing hearing,” the “prosecutor has no responsibility to make such recommendations enthusiastically.” State v. Shaffer, 2010 UT App 240, ¶ 26, 239 P.3d 285 (cleaned up); see also Gray, 2016 UT App 87, ¶ 18 (“[The prosecutor] described the circumstances of the crimes to underscore [the absence of mitigating factors], and at the conclusion of this discussion, he accurately, if not enthusiastically, described the recommendation the State had agreed to make for concurrent sentences . . . . [This] context supported a reasonable interpretation that comported with . . . the State’s obligations under the plea agreement.”).

¶20 Notably, the plea agreement does not contain any provisions regarding how the State was to fulfill its promise to “affirmatively recommend” the six-years-to-life sentence. It offers no guidance on how enthusiastically or forcefully the prosecutor had to argue in favor of the agreement. Nor does it indicate, as Heward argues on appeal that it should, any kind of obligation on the part of the prosecutor to highlight mitigating factors. And while it is true that the prosecutor did not approach the recommendation with gusto, it is even more clear that the prosecutor did affirmatively recommend the agreed-upon sentence two distinct times. The prosecutor explicitly declared that six years to life “is the State’s recommendation.” (Emphasis added.) And when cautioned by the court to “be circumspect” in his comments to avoid saying “anything” that “could be . . . trying to argue against that deal,” the prosecutor clarified that he was “not arguing that it should be anything else” and that the “State is still bound and still recommending 6 to life.” (Emphasis added.)

¶21 Moreover, these recommendations were “affirmative” in that the prosecutor did more than merely submit the matter without any argument against the defense’s recommendation; to the contrary, the State expressed its affirmative assent to the prison term agreed upon in the plea agreement. See State v. Samul, 2018 UT App 177, ¶¶ 13–17, 436 P.3d 298 (distinguishing between situations in which a plea agreement merely “secured the State’s promise not to oppose” the defense’s recommendation and situations in which a plea agreement requires the State to “affirmatively argue for” a particular sentence), cert. denied, 432 P.3d 1233 (Utah 2018). In this case, the prosecutor made an effort to positively express the State’s assent to the term of six years to life by declaring that the term “is the State’s recommendation.” (Emphasis added.) That the assent was expressed without great enthusiasm does not diminish that it was in the affirmative.

¶22 Thus, the prosecutor’s statements, especially when taken as a whole, represent a consistently unambiguous affirmation at sentencing that the State stood behind its recommendation of six years to life. We perceive no breach of the plea agreement in the manner in which the prosecutor recommended a six-years-to-life prison sentence.

  1. Implication of Regret

¶23 Heward next argues that in informing the court that the two victims apparently no longer supported the sentence of six years to life, the State breached the plea agreement by implying that it regretted entering it.

¶24 A prosecutor who “promises to recommend a certain sentence and does so” does not breach the bargain “by also bringing all relevant facts to the attention of the court, so long as the statements are neutral and do not imply that the information makes the State regret entering into the plea agreement.” Shaffer, 2010 UT App 240, ¶ 26 (cleaned up). The feelings of victims do not inherently reflect the position of the State, and victims are not authorized to communicate the State’s recommendations. Therefore, by sharing the victims’ feelings, the prosecutor was making a neutral statement, one that did not reflect the State’s position or recommendation. See id. ¶ 32 (“By repeating the victim’s statement, the prosecutor did not undermine the State’s recommendation or imply that the State regretted that recommendation.”). Thus, bringing to the court’s attention that the support of Heward’s victims for the plea agreement had perhaps waned does not imply that the State regretted entering the plea.

¶25        It is also important to note that the prosecutor made these comments immediately after Heward’s victims made statements that could admittedly cut against the sentence of six years to life. The older daughter seemed to explicitly oppose the plea agreement, saying that Heward was “being shown undue mercy . . . with a plea agreement.” And the younger daughter, while not overtly criticizing the plea agreement, described in detail how Heward’s abuse caused her to feel “numb,” depressed, anxious, “suicidal,” “unclean and dirty,” and untrusting. She further stated that she continued to have “very vivid nightmares and flashbacks” in which she could “physically feel his hands” on her. She also said, “I will never be able to forget how it felt when . . . Heward did the things he did to me. I’m afraid that wherever I go I will see him and he will hurt me in some type of way.” And she concluded by saying, “I want . . . Heward to learn from his actions, and I want him to know how badly he affected me . . . .” Given the graphic descriptions both victims provided of the ongoing harm they suffered, it certainly would not be a stretch to conclude that the victims thought Heward was being treated too leniently by the terms of the plea agreement.[2]

¶26 It was against this backdrop that the prosecutor spoke. As the State points out, the victims’ apparent “about-face on the plea agreement demanded an explanation” because the “court may have been confused by the disparity between the victims’ statements at sentencing and the plea agreement.” After all, the plea agreement stated that the “State and victims will affirmatively recommend” a sentence of six years to life. But after the victims spoke, the court could have easily concluded that the victims were no longer on board. It is in this milieu that the prosecutor assured the court that in “speaking with the victims through plea negotiations,” their “minimums were 6 to life” and “lifetime sex offender registry” and that was the offer the State gave Heward. Then the prosecutor explained that the victims had “wanted 6 to life” because “they felt manipulated” by Heward. We have made clear that a prosecutor conveying the views of the victim does not “undermine” or breach a plea agreement. Here, if anything, the prosecutor’s statements about how the victims felt represented an attempt to salvage the plea agreement after the victims’ statements could be taken as militating against it. And it was well within the prosecutor’s duty to assist the victims in making their views known. See State v. Casey, 2002 UT 29, ¶ 29, 44 P.3d 756 (“Prosecutors must assist victims in exercising their right to be heard at plea hearings and provide them with clear explanations regarding such proceedings.” (cleaned up)). The prosecutor appeared to be making the best of a delicate situation by juggling the interests of the various parties involved while trying to also honor the promises made in the plea agreement.

¶27        In sum, Heward’s complaint of plain error fails because the prosecutor did not breach the plea agreement at all, let alone commit a breach so obvious as to require the district court to intervene without an objection.

  1. Ineffective Assistance

¶28 Heward argues that Counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the plea agreement.

¶29 To show ineffective assistance of counsel, Heward must prove that Counsel performed deficiently and that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 687 (1984). “Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address [Heward’s claim] under either prong.” Honie v. State, 2014 UT 19, ¶ 31, 342 P.3d 182. Since we conclude, for two reasons, that Counsel did not perform deficiently, we limit our analysis to the deficiency prong. We give “trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Heyen, 2020 UT App 147, ¶ 18, 477 P.3d 23 (cleaned up), cert. denied, 485 P.3d 943 (Utah 2021). So, to prevail on Strickland’s first prong, Heward “must overcome the strong presumption that trial counsel rendered adequate assistance and exercised reasonable professional judgment by persuading the court that there was no conceivable tactical basis for counsel’s actions.” State v. Samul, 2018 UT App 177, ¶ 15, 436 P.3d 298 (cleaned up), cert. denied, 432 P.3d 1233 (Utah 2018).

¶30 First, any objection would have been unlikely to succeed because, as we have explained above, it was far from clear that the prosecutor breached the plea agreement. See State v. Burdick, 2014 UT App 34, ¶ 34, 320 P.3d 55 (“It is well settled that counsel’s performance at trial is not deficient if counsel refrains from making futile objections, motions, or requests.” (cleaned up)), cert. denied, 329 P.3d 36 (Utah 2014). Under these circumstances, a reasonable attorney could have concluded that the prosecutor had made the required “affirmative recommendation” and had therefore not breached the plea agreement at all. See Samul, 2018 UT App 177, ¶ 16 (“Here, we can easily conceive of a reasoned basis for counsel’s decision not to object to the State’s remarks at sentencing: counsel may have believed that the State was accurately describing the terms of the plea agreement.”).

¶31        Second, even if we assume, for purposes of the discussion, that Counsel actually believed, in the moment, that the prosecutor’s sentencing remarks constituted a breach of the plea agreement, Counsel nevertheless had a solid strategic reason not to object to the prosecutor’s statements, namely, an objection could jeopardize the plea agreement and he very much wanted it to remain on the table owing to the favorable terms it offered Heward. Through the plea agreement, Heward would serve time for only two of his eleven charges—ten counts of aggravated sexual abuse of a child and one count of rape of a child. If Counsel had been successful in objecting that the prosecutor breached the plea agreement, one of two results would have likely happened. At its discretion, the district court could have ordered “either specific performance of the plea agreement or withdrawal of the guilty plea.” State v. Smit, 2004 UT App 222, ¶ 17, 95 P.3d 1203. If the court had ordered specific performance, the State would then have to reiterate that it was honoring the promises made in the plea agreement. But it would have been more likely (had a breach occurred) that the court would have allowed Heward to withdraw his plea—something he would be reluctant to do since the probability of getting an equally favorable offer later would be slim in light of the victims’ apparent reservations about the existing plea agreement. Competent counsel could easily conclude that the risk of objecting was simply too great considering the minimal benefit and likely downside. At the very least, competent counsel could have reasoned that there was no benefit in objecting because the existing agreement was the best Heward was going to receive. So, Counsel’s best course of action was to express Heward’s concurrence with the six-years-to-life sentence and hope that the court would agree.

¶32        Accordingly, Heward’s ineffective assistance claim fails because Counsel had sound strategic reasons for not lodging an objection to the prosecutor’s statements at sentencing.


¶33        Heward fails to establish that the district court plainly erred where he has not shown that the plea agreement was breached, much less obviously so. He has also failed to show that Counsel provided ineffective assistance in not objecting to the prosecutor’s statements.

¶34 Affirmed.

Utah Family Law, LC | | 801-466-9277

[1] For context, a court imposing a sentence for aggravated sexual abuse of a child may deviate downward from the presumptive upper range of fifteen years to life if the “court finds that a lesser term . . . is in the interests of justice.” See Utah Code § 76-5-404.3(4). The available lesser terms are ten years to life and six years to life. See id.

[2] In his reply brief, Heward explicitly states that he “does not object to the prosecutor facilitating the victims’ statements to the trial court.” Moreover, Heward does not claim in any way that the victims speaking up against the low-range sentence was a breach of the plea agreement, even where the plea agreement stated the victims would “affirmatively recommend” a sentence of six years to life along with the State.

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Sorensen v. Crossland – 2024 UT App 41 – denial of due process

Sorensen v. Crossland – 2024 UT App 41



Opinion No. 20220756-CA Filed March 28, 2024, Third District Court, Salt Lake Department

The Honorable Mark S. Kouris No. 180902903

Ralph C. Petty, Attorney for Appellant

Matthew N. Olsen and M. Tyler Olsen, Attorneys for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which



¶1 A father and mother stole from their daughter by taking settlement funds of $133,000 awarded to her and buying themselves a house. Fifteen years later, the daughter discovered the theft and sued, obtaining a judgment of nearly $279,000. In the meantime, the parents divorced and the father remarried. The daughter then filed the present action, maintaining that her father fraudulently transferred funds to his new wife for less than equivalent value, all while paying nothing on the judgment and being insolvent. The matter came before the district court for trial. Midway through the examination of the daughter’s first witness, the district court raised a legal issue, suspended the presentation of witnesses and evidence, and ordered supplemental briefing. The district court indicated that a future hearing would be held. But no such hearing occurred, and instead the district court entered a ruling—the effect of which was the dismissal of the daughter’s case. The daughter appeals, claiming legal error and a deprivation of due process. We agree and reverse.


¶2        Candice Crossland Sorensen, who was born in 1989, received about $133,000 in a medical malpractice settlement when she was a minor. The funds were placed into accounts managed by her parents, Steven G. Crossland and Cindi R. Crossland. In 1999, Steven and Cindi used these funds to purchase a house.[1] The property was titled in the parents’ names only, and Candice moved into the house with her parents.

¶3        In 2014, when Candice learned of the use of her settlement money, she sued Steven and Cindi. This suit was not resolved until March 2018, at which point a judgment was entered against Steven and Cindi, jointly and severally, in the amount of nearly $279,000, with a judgment interest rate of 3.76%. No payments were ever made to Candice, and Candice did not attempt to collect the judgment.

¶4        Steven and Cindi divorced in January 2015, prior to the entry of the judgment, and in September 2015, Steven met and began living with Lori A. May. Steven moved into a property Lori was renting, and he paid Lori $700 monthly toward rent. Lori and Steven split the remaining expenses for utilities, car payments, and groceries. In July 2016, Steven and Lori ceased renting and purchased a house, for which Steven made the mortgage payment while Lori shouldered other living expenses.[2]

¶5        In May 2018, Candice initiated this action against Steven and Lori for fraudulent transfer,[3] arguing that Steven gave money to Lori (1) without receiving anything of value in exchange, (2) “with the intent to hinder, delay, and defraud” Candice, and (3) while he was insolvent or about to become insolvent shortly after the transfer.

¶6        Extensive discovery was conducted, including the taking of depositions from Candice, Steven, and Lori. Candice also subpoenaed copies of Steven’s and Lori’s bank statements.

¶7        The action was set for a two-day bench trial, but the proceeding lasted only a half day. It began with the testimony of Steven, which was interrupted by the lunch break. Once back in session, the court ordered the parties to prepare briefs addressing the law on fraudulent transfer. Specifically, the court seemed to be concerned that Candice had not made any previous effort to collect the debt, which—in the court’s view—removed her claim from the realm of fraudulent transfer. In reference to the money Steven owed Candice, the court stated,

I don’t believe that there is a legal obligation to pay the debt [from the judgment]. I think there’s probably a moral obligation, but I don’t think there’s a legal obligation.

And the reason I think that is because once the debt is there, the law gives the creditor a number of tools by which to go get that debt. I mean, the creditor literally could seize personal assets and sell them, they could foreclose on homes, they could attach bank accounts, they could garnish wages. Those are all the tools that debt collectors have to go out and get this debt.

Fraudulent transfer is, I think, a whole different chapter in . . . that we’ve got a collector trying to [collect on the debt], but the debtor is playing games with hiding the money or moving the title somewhere else, or doing whatever he can to avoid those methods. But I think the process starts with [debt collection] methods . . . .

I don’t think . . . there have been collection efforts in this case . . . . I don’t know what has brought us to here. But I do believe, I know that the monthly rental payments and so forth that [Steven] is paying [Lori] to live in the house and so forth, I don’t believe those are unlawful transfers.

Given this concern, the court instructed the parties to prepare supplemental briefing on whether Steven “paying half his rent by paying” Lori was “somehow a fraudulent transfer.” The court indicated that once the supplemental briefing was completed, Candice was to file a request to submit and the court would “then go and schedule a hearing.”

¶8        As it turns out, no request to submit was filed, but the court nevertheless issued a ruling—without the benefit of another hearing. Candice never had the opportunity to complete her examination of Steven, call Lori as a witness (as she had indicated she would do in her disclosures), and rest her case.

¶9        The court’s ruling was premised on this point:

There was no evidence that [Candice] had initiated the traditional methods to satisfy [the] judgment. Nor that [Candice] provided evidence of even sending personal demand letters or placing similar phone calls. Instead, [Candice’s] argument is that [Steven and Lori] did not pay the outstanding judgments, but instead continued to live their lives and satisfy their routine expenses.

From the lack of effort to collect the judgment, the court concluded that Candice had proved “no instance” that “any of [Steven and Lori’s] use of money was [done] with ‘actual intent to hinder, delay, or defraud’ [Candice’s] collection efforts” under the Uniform Voidable Transactions Act. See Utah Code § 25-6­202(1)(a) (“A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation . . . with actual intent to hinder, delay, or defraud any creditor of the debtor . . . .”). In other words, because Candice had not shown that any “pending collection effort was thwarted” by Steven and Lori’s expenditures, her claim of fraudulent transfer necessarily failed. Another current of the court’s reasoning was that Candice had not shown that any of Steven and Lori’s purchases were “unreasonable,” implying that such a showing was necessary to establish an intent to defraud.

¶10      Candice subsequently filed a motion to amend the findings and a motion for a new trial. Candice’s motions were based on the assertions that (1) Steven’s examination was interrupted by the lunch break and never completed, (2) Lori was never “examined and no evidence was entered in relation to her testimony” even though Candice had intended to call her, and (3) Candice did not “rest [her] case or indicate that [she] had completed [her] presentation of evidence to the court.” Given the “state of the proceeding when the trial was recessed,” Candice argued that many of the court’s factual findings and conclusions of law were “unjustified.” She asserted that “[w]ithout the opportunity to present the remainder of her evidence, the Court [could not] make accurate and comprehensive findings and conclusions” and that she would, accordingly, suffer “the denial of her due process rights.” The court denied both motions. Candice appeals.


¶11      Candice argues that the district court violated her right to a fair and meaningful trial under the due process clause of the Utah Constitution. See Utah Const. art. I, § 7. “Constitutional issues, including questions regarding due process, are questions of law that we review for correctness.” Salt Lake City Corp. v. Jordan River Restoration Network, 2012 UT 84, ¶ 47, 299 P.3d 990 (cleaned up).[4]


¶12      Truth be told, we are not sure what happened here. But we are sure that something seriously amiss occurred when Candice was not provided with the opportunity to fully present her case.

¶13      We agree with Candice that her due process rights to a fair and meaningful trial were denied. There is no question that Candice never completed her presentation of evidence through the examination of Steven and Lori. Indeed, in its order denying Candice’s two post-trial motions, the district court stated that “[a]fter reviewing the audio recording” of the trial, it found that Candice’s claim that she “presented only a portion of the examination” of Steven “to be true, albeit out of context.” “To provide context,” the court stated that Candice’s examination of Steven consisted entirely of “having [Steven] go line-by-line through his check register and explain each transaction” and that “the balance of this testimony would be to continue the trip through [Steven’s] check register.” It appears that the court concluded that such evidence would not be helpful, and it was at this point that the court instructed the parties to prepare supplemental briefing because the court could “[n]ot understand[]” how these transactions could be the “basis for the fraudulent conveyance claims.” The district court’s explanation fails, however, to address why, despite the court not understanding how the transactions would support Candice’s claims, it did not allow the witness to complete his testimony; nor did the district court explain why no other witnesses or evidence would be allowed.[5] Candice also never rested her case in this trial precipitously terminated by the court. The proceeding was simply suspended, as far as we can tell, but never reconvened.

¶14 “No principle is more fundamental to the integrity of a society that claims allegiance to the rule of law than the principle that a person may not be deprived of his property without first being afforded due process of law.” Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 28, 156 P.3d 782. “Due process of law requires” that a court “hears before it condemns, proceeds upon inquiry, and renders judgment only after trial.” Riggins v. District Court, 51 P.2d 645, 660 (Utah 1935) (cleaned up).

¶15      This principle is repeatedly embodied in the Utah Rules of Civil Procedure. “In all actions tried upon the facts without a jury . . . the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of the evidence.” Utah R. Civ. P. 52(a)(1) (emphasis added). And a court is allowed to make a judgment on partial findings only if “a party has been fully heard on an issue during a nonjury trial.” Id. R. 52(e) (emphasis added).

¶16      That did not happen here. Candice was never “fully heard” on her fraudulent transfer claim. Not only was she unable to complete her examination of Steven, but she was never afforded the opportunity even to begin her examination of Lori, who was disclosed as a witness. We are hard pressed to see how Candice was heard in a way that would satisfy her due process rights. Additionally, we note that the district court, shortly after it instructed the parties to submit supplemental briefing, expressly stated that it would “schedule a hearing” upon receiving Candice’s notice to submit. But Candice filed no such request, and the court did not schedule such a hearing. Given the procedural posture of the case, Candice had every reason to believe that she would be afforded the opportunity to complete her presentation of evidence and then rest her case, and it must have come as a surprise to her that the court issued its ruling prematurely.

¶17      Accordingly, we reverse the court’s ruling and remand this matter for further proceedings to allow Candice the opportunity to complete her presentation of evidence.

¶18 Because this matter is being remanded, and where the district court will likely face the same question about the applicability of Utah’s fraudulent transfer law, we provide the following guidance. See In re A. Dean Harding Marital & Family Trust, 2023 UT App 81, ¶ 149, 536 P.3d 38 (offering guidance regarding an issue ancillary to the reason for remand). The court repeatedly mentioned that Candice never made any efforts to collect on the judgment, the implication being that she could not show an intent to defraud, hinder, or delay without having first made such an effort. But we point out that there is no requirement that a person attempt any collection efforts prior to filing a fraudulent transfer action. See Utah Code § 25-6-202(1). The Uniform Voidable Transactions Act expressly states that a creditor can pull back transfers “whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred.” Id. In other words, the debt does not necessarily have to be liquidated to support a fraudulent transfer claim. The only requirement is that the debt exist, even if it’s on an unliquidated or a contingent basis. Here, there is no question that Steven’s debt to Candice existed before the alleged fraudulent transfers were made. The debt arose the moment that Candice was entitled to the medical malpractice settlement money. Indeed, Steven admitted in his deposition that he knew Candice was entitled to the money but due to his and Cindi’s actions, the money was not available:

Counsel: [A]s part of [Candice’s medical malpractice] settlement, there was a sum of approximately $133,000 that went into a trust account that was controlled by her parents, you and Cindi, that was paid for by the doctors; correct?

Steven: Yes.

Counsel: Now, the understanding was, I guess, that

when Candice reached the age of 18 years old, that that money would become hers; is that correct?

Steven: Correct.

.  . .  .

Counsel: Now, at the time Candice turned 18 or thereafter, those funds . . . that you and Cindi controlled . . . were not made available to her, were they?

Steven: No . . . .

Counsel: And the reason was because they had been

utilized for the purchase of the [first house]; is that correct?

Steven: Correct.

And it was well after Steven was aware of his indebtedness to Candice (she turned eighteen in 2007) that he made the alleged fraudulent transactions associated with the purchase of the second house with Lori in 2016. To put it plainly, Candice was under no obligation to engage in collection efforts when, as here, the debtor was well aware of his obligation. Indeed, it seems to us that any expenditures Steven made after Candice was entitled to medical malpractice settlement money could potentially—if supported by evidence that they were made with an intent to hinder, delay, or defraud—be the basis for a fraudulent transfer claim.


¶19 We conclude that Candice’s due process rights were abridged when the district court issued a ruling in the context of a trial without affording Candice the opportunity to complete her presentation of evidence. We reverse the district court’s order dismissing her case and remand this matter for proceedings consistent with this opinion.

Utah Family Law, LC | | 801-466-9277

[1] Because some of the parties share the same surname, we employ given names for all parties.

[2] The record is unclear as to what happened to the equity in the home purchased by Steven and Cindi.

[3] The Fraudulent Transfer Act as been renamed to the Voidable Transactions Act. See JENCO LC v. SJI LLC, 2023 UT App 151, ¶ 20 n.4, 541 P.3d 321. However, we will use the nomenclature employed by the district court.

[4] Candice also asserts that the district court erred in denying her motions to amend the findings and for a new trial. Because we resolve this appeal on the first issue, we have no need to address these other claims of error.

[5] That is not to say that a district court could never curtail the presentation of evidence that the court found unhelpful. See Utah R. Evid. 611(a) (“The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.”). For example, the district court could have solicited a proffer of the remainder of Candice’s case in chief. See State v. Boyd, 2001 UT 30, ¶ 36, 25 P.3d 985 (“A proffer is a mechanism by which a party may create an appellate record of what the evidence would have shown.”). With that record, we might have been able to determine whether Candice’s claims could have entitled her to a judgment.

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What Are the Odds That I Can Get Custody of My Daughter if I Have a Serious Criminal Record?

Without knowing more about your criminal record, I can still safely predict that having almost any kind of chronic or significant criminal record reduces your chances of being awarded custody of a child simply because having a criminal record indicates some kind of character flaw or moral failing, and good character and morals are a factor in determining parental fitness.

The kinds of crimes that have the greatest impact on the child custody analysis and award likely come as no surprise to anyone: child abuse (physical abuse, sexual abuse, psychological and emotional abuse), child neglect, physical, sexual, and emotional abuse of a spouse, violent crimes, and substance abuse.

Clearly, a history of shoplifting convictions is not as bad—from a parental fitness perspective—as a history of multiple felonious assault or child abuse or drug abuse or DUI convictions, but a criminal “lifestyle” is still one that a court would have a hard time knowing about and yet still subjecting a child to such a life with criminal parent.

If you had a long or serious criminal history, but worked long and hard and earnestly to reform (i.e., you realized the error of your ways, you regret the wrongs you did, you’ve changed for the better, and you are trying your best to make amends), that may persuade the court that your criminal history is no longer relevant or at least not as relevant as it would have been had your history indicated no remorse and no efforts to repent.

Utah Family Law, LC | | 801-466-9277

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What Is the Benefit of a Legal Separation (Separate Maintenance) or a Temporary Separation Order in Utah?

Many people ask what the benefits of a legal separation are. Aside from the obvious “it gives us the option of staying together, if we want to,” are there other reasons the average person might want to separate but not divorce immediately?

I have the same conversation with potential clients who ask whether they “need” or “should get” a legal separation or temporary separation order instead of/before seeking a divorce. I tend to agree with you, i.e., that I see no benefits to legal separations for the majority of people. I’m sure that there is the occasional couple who might benefit from a legal separation or temporary separation order, but I have yet to encounter one. With two (maybe three) exceptions (and one of those ended in suicide), everyone I know who has separated ended up divorcing.

Sometimes separation makes sense if a spouse needs insurance coverage and can’t afford his/her own separate policy (note: some insurance policies require that spouses reside together, so in a situation like that, separation wouldn’t avail a spouse of insurance benefits).

Attorneys who sell separate maintenance or separation orders are, in my experience, doing so to make money, not to solve anyone’s or any couple’s problems.

Utah Family Law, LC | | 801-466-9277

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Can I Request to Have My Son’s Grandmother Removed From the Courtroom During My Custody Case Proceedings?

Are the court proceedings in your kind of case open to the public? If so, then the grandmother, being a member of the public, may have a right to be in the courtroom during the proceedings, as long as 1) there is no law that allows her to be excluded and 2) she is not disrupting the proceedings by being present during the proceedings.

Juvenile court proceedings are closed to the public in Utah.

District court proceedings are open to the public in Utah. That stated, it’s very easy for a Utah district court to exclude members of the public from the courtroom in certain kinds of cases because of Utah Code § 78A-2-208(4):

§ 78A-2-208.  Sittings of courts — To be public — Notice to public of recording — Right to exclude in certain cases.

(1) The sittings of every court of justice are public, except as provided in Subsections (3) and (4).

(2) The Judicial Council shall require that notice be given to the public that the proceedings are being recorded when an electronic or digital recording system is being used during court proceedings.

(3) The court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the proceedings.

(4) In an action of divorce, criminal conversation, seduction, abortion, rape, or assault with intent to commit rape, the court may, in its discretion, exclude all persons who do not have a direct interest in the proceedings, except jurors, witnesses and officers of the court.

(emphasis added)

Utah Family Law, LC | | 801-466-9277

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Do Many Women Lie About DV in Divorce and Child Custody Court Cases?

Yes. Many women (not all, but many more than we’d like to believe unquestionably lie and make outright false or grossly exaggerated domestic violence claims. The temptation to tell such lies is just too great for many women when they see the leverage and advantage it gives them in divorce and child custody cases, the immediate “temporary” custody of the children and associated child and spousal support and possession of the marital home, and the money to be had by being awarded sole or primary child custody and/or alimony in part due to making claims that the husband/father is a spouse and/or child abuser.

Do men do the same? Of course some men do. But rarely are they believed. So, that keeps the liars in check to some extent, at the expense of actual male domestic violence victims.

Utah Family Law, LC | | 801-466-9277

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Why Condemn Children to Sole Custody Awards When They Have Two Fit Parents?

One of the arguments that some fathers make when they encounter the double standard applied to mothers and fathers in child custody disputes (resulting in a denial of equal legal and physical custody to perfectly fit fathers in situations in which there is no way it could be shown that sole custody subserves the best interest of the child better than joint equal custody), they sometimes argue in utter (and utterly understandable) frustration, “Single mothers prove to be the worst parents time and time again!”

That’s an overstatement, a misleading claim. There are plenty of bad single mothers, sure, but single mothers don’t have a corner on the bad parent market.

Single parents (man or woman) have a hard time being the best parents (and being their best selves as a result) because parenthood was never meant to be a solo act. Single parents who try to marginalize and cut the other parent out of childrearing are doing not only the children a disservice, but themselves a disservice as well.

Utah Family Law, LC | | 801-466-9277

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Mother Made False Accusations Against a Father to Win Custody and Had a Restraining Order Put in Place With No Evidence to Back Her Reason, Can This Be Overturned?

Can it be overturned? It is possible.

Will it be overturned? The odds don’t favor Dad. While some fathers who are falsely accused do obtain vindication, the odds are against them. Why?

There is an undeniable bias in favor of mothers who claim to be victims of abuse or who claim that their husbands/children’s father is abusive. Courts err on the side of caution, take a “better safe than sorry” approach. There are many reasons for this, including but not necessarily limited to: beliefs that women don’t lie about abuse, belief that children are generally better off in the sole or primary custody of their mothers, and cynically calculating that it’s better for the judge’s career to issue protective orders against men who are either innocent or there is a question of their innocence than it is to “take the chance” on innocent until proven guilty. When court’s engage in such behavior, it’s lazy, it’s cowardly, it’s judicial malfeasance.

How can/does a falsely accused parent (father or mother, for that matter) clear his/her good name? Short of the kinds of things one cannot control (i.e., suddenly getting a new, sympathetic judge because the old judge retired or got sick, etc.), the most effective way is: presenting the court with evidence so overwhelming that the court cannot deny it, cannot disregard it without looking biased and/or incompetent. Easier said than done, and not always possible, but it’s really the only moral option.

Utah Family Law, LC | | 801-466-9277

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I’m a Divorce Lawyer. Too Many People Divorce.

I’m a divorce lawyer. I’m not divorced (God willing, I won’t ever be), I am opposed to divorce generally (while there are times when a divorce is plainly necessary, most of the time divorce makes what one is suffering, what one’s spouse, and what one’s family are suffering worse). The family law legal system is adequately designed but poorly administered (and that includes many of the litigants).

While I acknowledge that many people marry foolishly and recklessly, people divorce far too often.

If your marriage is not placing your physical safety or life in danger, if your spouse is not flouting his/her marital vows, and yet you are still contemplating divorce, ask yourself if it’s your spouse or even merely being married that is your problem (it likely isn’t).

If your spouse or marriage is not your problem, they are likely more help to you than a hindrance, and throwing them away will likely do you (and your spouse) more harm than good.

Utah Family Law, LC | | 801-466-9277

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I Was Just Laid Off, Through No Fault of My Own, and Don’t Know How Soon I’ll Find Work Again or How Much I Might Actually Earn Once I Do. How Do I Get the Court to Reduce or Terminate My Alimony Obligation?

A reduction in the alimony award obligation is extremely difficult to obtain. It’s designed to be difficult to modify downward, so that only those who 1) are truly unable to pay, and/or 2) can prove there is no longer a need to pay, receive relief.
And as you can imagine, even if you believe you have a strong case for alimony reduction or termination, your ex will likely resist your efforts by every means available to him/her.
To get a reduction, you need to prove that your income has decreased on a non-temporary basis due to no fault of your own and/or that the alimony recipient’s need to be paid alimony has decreased or no longer exists.
Losing your job is usually not enough to obtain a reduction or elimination of alimony. If you can also show that your job cannot be replaced or cannot be replaced at the same level of income that your lost job paid, you may have some hope of obtaining an order reducing or eliminating your alimony obligation. Otherwise, mere loss of a job will not be enough. It’s expected and anticipated that people who lose their jobs will find a new job making essentially the same amount of money in most situations.
Has your ex-spouse’s income increased to the point that he/she can support herself at the lifestyle to which he/she was accustomed during the marriage? Or has he/she voluntarily reduced his/her lifestyle expenses? If so, and if you can prove it, you may be able to persuade the court to terminate or reduce your alimony obligation on the basis that the need for alimony has decreased or even ceased to exist.
Utah Family Law, LC | | 801-466-9277
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Fair Treatment in Court by Braxton Mounteer, Legal Assistant.

The family law legal system likes to portray itself as a shining beacon of justice and equity, but I have seen first-hand that it is not. Whether it is opportunistic clients and their lawyers who will throw anything against the wall to see what sticks, or cowboy commissioners and judges who play fast and loose with the rules (and even make up their own), generally you will not get a fair shake (just a fair shake) unless you fight—and fight hard and extensively—for it.

Fight just to keep everyone honest? Really? Yes. Well, yes, in the sense that unless you don’t care about your own good character and subscribe to the “fight fire with fire” way of doing things.

If you have enough money, there is more than one lawyer out there that will take it and do and say basically whatever you want.

What about the commissioners and judges? Aren’t they motivated purely by upholding the law and the rules and dispensing justice impartially? Some are. Not all. It’s unpleasantly surprising to me how many domestic relations commissioners and judges indulge in pride, biases, apathy, and indolence.

If you know you’re innocent, if you know you’re a good person, that is rarely enough to ensure you’re treated fairly. What can you do if and when the deck is stacked against you because the opposing party is willing to lie, cheat, and steal his/her way to victory? You must fight with everything that you have. You must—if you can—produce overwhelming evidence that you are in the right (or the opposing side is in the wrong) if you are to have confidence that you will be treated fairly. That’s hard. That’s financially and emotionally exhausting. But there are no shortcuts.

Utah Family Law, LC | | 801-466-9277

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McFarland v. McFarland – 2024 UT App 31 – attorney’s fees awards

McFarland v. McFarland – 2024 UT App 31



Opinion No. 20221044-CA, Filed March 14, 2024

Second District Court, Farmington Department

The Honorable David J. Williams No. 084701533

Angilee K. Dakic, Attorney for Appellant, Jacob K. Cowdin, Attorney for Appellee


HARRIS, Judge:

¶1 This domestic dispute between Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole) comes before us for a second time. This time, we are asked to assess the propriety of two aspects of the district court’s most recent set of orders: the court’s decision to modify the parties’ divorce decree and award the house in which the parties lived while they were married (the Home) to Bruce instead of to Nicole, and the court’s decision to require Nicole to pay Bruce’s attorney fees incurred in litigating the petition to modify. We see no reversible error in the court’s award of the Home to Bruce, and we therefore affirm on that issue. But we agree with Nicole that the court erred in awarding attorney fees to Bruce, and we therefore reverse that fee award.


¶2        In our previous opinion, we set forth many of the relevant facts underlying the parties’ dispute. See McFarland v. McFarland, 2021 UT App 58, ¶¶ 2–18, 493 P.3d 1146. In the interest of brevity, we recite in this opinion only those facts necessary to our decision.

¶3        Bruce and Nicole’s divorce decree (the Decree) was entered in 2009 following a negotiated settlement. As relevant here, the Decree required Bruce to pay Nicole $1,700 per month in alimony, and it awarded the Home to Nicole “subject to” her “assumption” of the mortgage, tax, and insurance obligations associated with the Home as well as “a judicial lien in the sum of $12,034.24 payable to” Bruce. According to the Decree, Nicole was to pay Bruce the lien amount on the occurrence of the first of these events: (1) when Nicole remarries or cohabits; (2) when the Home is sold or rented; (3) when Nicole “moves from” the Home or no longer uses it as her primary residence; or (4) when the parties’ youngest child graduates from high school. Several of those events have long since occurred; indeed, the district court later found that Nicole “abandoned” the Home in 2010. At no point did Nicole ever make any of the mortgage, tax, or insurance payments on the Home, nor did she ever pay Bruce the lien amount.

¶4        Instead, after a brief period in which he did not live in the Home, Bruce moved back into the Home in 2009 and has lived there at all times since. And after entry of the Decree, Bruce— rather than Nicole—has made all mortgage, tax, and insurance payments on the Home, and he has also maintained and made improvements to the Home. But other than one single payment in January 2009, Bruce paid no alimony to Nicole. Thus, soon after the Decree was entered, both parties began to ignore many of the Decree’s important provisions. But for the next seven years, neither party seemed bothered by the other’s noncompliance, and neither sought to modify or enforce the terms of the Decree.

¶5        In 2017—apparently motivated by a desire to refinance the Home—Bruce filed a petition to modify (Bruce’s Petition), asking the court to modify the Decree to (among other things) award him the Home. Nicole responded not only by resisting Bruce’s Petition, but also by filing two motions asking the court to hold Bruce in contempt for (among other things) failing to pay alimony and for “willfully occup[ying Nicole’s] property,” namely, the Home. Concerning the Home, Nicole asked that the court “immediately restore[]” her “to the use and possession of” the Home. Later, in 2019, the court found Bruce in contempt for failing to pay alimony, and it ordered Bruce to pay Nicole over $150,000 in unpaid alimony. But the court declined to find Bruce in contempt for occupying the Home. The court made no ruling on Bruce’s Petition, however, because that matter had apparently not yet been certified for trial. But the court allowed Bruce to continue living in the Home “on a temporary basis” until the matter was finally resolved.

¶6        Both parties appealed several aspects of the court’s 2019 rulings and, in this case’s first trip to this court, we affirmed the court’s alimony award to Nicole and remanded “the case for further proceedings” regarding (among other things) Bruce’s Petition. Id. ¶¶ 46–47.

¶7        Following remand, the district court held a hearing to consider matters regarding the Home. Bruce asserted that any claim Nicole might make regarding possession of the Home was barred by several equitable doctrines, including waiver and laches. In particular, Bruce claimed that Nicole had waived any claim to the Home by moving out in 2010 and taking no action in the intervening years to challenge Bruce’s possession of it, and that Nicole’s claim was barred by laches because her “delay in bringing her claim” was “unreasonable” and “prejudicial to Bruce.” Nicole resisted all of these arguments and, in addition, claimed that Bruce’s Petition was barred by res judicata.

¶8        At the conclusion of the hearing, the court made an oral ruling granting Bruce’s Petition and denying Nicole’s motion regarding the Home. The court later issued a written ruling setting forth its findings and conclusions. In that ruling, the court found that Nicole’s abandonment of the Home in 2010 constituted “a material and substantial change in circumstances.” The court also rejected Nicole’s claim that Bruce’s Petition was barred by res judicata. And the court determined that modification of the Decree to award Bruce the Home was appropriate; the court found merit in several of Bruce’s equitable arguments. Specifically, the court determined that Nicole had waived any claim to the Home by moving out and failing to make any payments related to the Home since the Decree was entered. And the court concluded that laches also barred Nicole’s claim to the Home because she had delayed bringing any such claim and her delay had prejudiced Bruce because Bruce had made payments and improvements on the Home in the intervening years. The court noted that Bruce had also delayed in bringing his petition, but it found that Nicole had not been prejudiced by Bruce’s delay.

¶9        Bruce asked the court to award him attorney fees incurred in litigating his petition. As the district court interpreted it, this request was grounded not in the attorney fees statute found in the family law code, see Utah Code § 30-3-3, but, instead, in Utah’s bad-faith attorney fees statute, see id. § 78B-5-825. The court granted Bruce’s request, but it made no specific finding that Nicole’s claims and defenses regarding the Home had been “without merit.” It did make an express finding that “Nicole’s effort to pursue an award of [the Home] roughly eight (8) years after abandoning [it] was an act of bad faith” that Nicole undertook with a “retaliatory” motive in reaction to the filing of Bruce’s Petition. And the court noted that, during the intervening years, Nicole “had not satisfied the conditions in the Decree that allowed her to take possession of” the Home. Based on these findings, the court concluded that “law and equity call for an award of attorney fees in Bruce’s favor as it relates to the issue of” the Home. The court later quantified that attorney fee award, ordering that Nicole pay Bruce $7,390.67 for attorney fees he incurred litigating issues related to the Home.


¶10      Nicole appeals two aspects of the court’s rulings. First, she challenges the court’s order modifying the Decree to award the Home to Bruce. “In this context, we review the district court’s underlying findings of fact, if any, for clear error,” and we review “its ultimate determination regarding the petition to modify[] for an abuse of discretion.” Myers v. Myers, 2023 UT App 20, ¶ 19, 526 P.3d 1253. Whether the court chose and applied the correct legal standard is a question of law “that we review for correctness.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159.

¶11      As discussed below, our analysis on this point focuses on the court’s application of the doctrine of laches and, in particular, on its determination that Bruce was prejudiced by Nicole’s delay in asserting a right to possession of the Home. “The application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). While “[l]aw-like mixed questions are reviewed de novo,” mixed questions that are more “fact-like” are “reviewed deferentially.” Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. For the reasons discussed more fully later, see infra ¶¶ 18–21, we conclude that a district court’s prejudice determination made in the laches context is more fact-like than law-like and, therefore, calls for a more deferential standard of review.

¶12 Second, Nicole challenges the court’s award of attorney fees to Bruce under the bad faith statute. “We review a trial court’s grant of attorney fees under the bad faith statute as a mixed question of law and fact.” Outsource Receivables Mgmt., Inc. v. Bishop, 2015 UT App 41, ¶ 11, 344 P.3d 1167 (quotation simplified).

“A finding of bad faith is a question of fact and is reviewed by this court under the ‘clearly erroneous’ standard,” but a “‘without merit’ determination is a question of law” that we review “for correctness.” Id. (quotation simplified).



¶13      We first address Nicole’s challenge to the district court’s grant of Bruce’s Petition and its accompanying order modifying the Decree to award the Home to Bruce. The court based its ruling on several distinct legal doctrines, including waiver and laches. Nicole challenges the application of these doctrines, asserting that none of them apply to the facts at hand. For the reasons discussed, we conclude that the court did not abuse its discretion when it concluded that Bruce was prejudiced by Nicole’s delay in asserting her claim to the Home, and that therefore the doctrine of laches operates to bar Nicole’s claim. Because we affirm the court’s laches determination, we need not reach the question of whether the court erred in its application of waiver or any other legal or equitable doctrine.

¶14 “Laches” is an equitable doctrine “founded upon considerations of time and injury.” Insight Assets, Inc. v. Farias, 2013 UT 47, ¶ 17, 321 P.3d 1021 (quotation simplified). The thing that the doctrine is concerned about “is not mere delay, but delay that works a disadvantage to another.” Id. (quotation simplified). “In Utah, laches traditionally has two elements.” Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 2012 UT 66, ¶ 29, 289 P.3d 502. First, the party claiming laches must demonstrate that the other party “unreasonably delayed in bringing” a claim. See Veysey v. Nelson, 2017 UT App 77, ¶ 8, 397 P.3d 846 (quotation simplified), cert. denied, 400 P.3d 1046 (Utah 2017). Second, the party claiming laches must demonstrate that it “was prejudiced by that delay.” Id. (quotation simplified); see also Laches, Black’s Law Dictionary (11th ed. 2019) (defining “laches” as “[t]he equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought”).

¶15      Nicole concedes that the first element of the laches test— unreasonable delay—is met here, given her eight-year delay in objecting to Bruce’s possession of the Home. Because of this concession, we need concern ourselves only with the second element of the laches test: whether Bruce was prejudiced by Nicole’s unreasonable delay.

¶16      On that point, the district court made a specific finding that Bruce would suffer “clear prejudice” if Nicole were allowed to claim possession of the Home. The court observed that Bruce had raised the parties’ children in the Home, had made “improvements” to the Home, and had taken care of “all financial obligations related to” the Home since 2009. In light of these undisputed facts, the court determined that Bruce would be prejudiced if Nicole were allowed to assert, after all these years, a right to exclusively use and possess the Home.

¶17 Nicole challenges the court’s prejudice determination, asserting that her delay in asserting her rights to the Home was actually “a benefit to Bruce” because it gave him a place to live and because he was able to take “significant amounts of equity out of” the Home “on multiple occasions.” But before we can address Nicole’s challenge to the court’s prejudice determination, we must first determine the appropriate standard of review.

¶18      As previously mentioned, see supra ¶ 11, a district court’s “application of laches to a particular set of facts and circumstances presents a mixed question of law and fact.” Peterson v. Pierce, 2019 UT App 48, ¶ 9, 440 P.3d 833 (quotation simplified). “Mixed questions fall somewhere in the twilight between deferential review of findings of fact and searching reconsideration of conclusions of law.” In re adoption of Baby B., 2012 UT 35, ¶ 42, 308 P.3d 382. The level of deference afforded to district courts in such situations thus depends on whether the determination at issue is more law-like or fact-like. See Sawyer v. Department of Workforce Services, 2015 UT 33, ¶ 11, 345 P.3d 1253. We must therefore assess whether a determination regarding prejudice, in the laches context, is more fact-like than law-like. As far as we are aware, no Utah court has yet rendered a specific ruling on this question.

¶19      When considering whether a question “should be deemed law-like or fact-like, we evaluate the marginal costs and benefits of conducting either a searching de novo review or a deferential review of a lower tribunal’s resolution of the mixed question.” Id. ¶ 12 (quotation simplified). To that end, our supreme court has instructed us to consider three relevant factors:

(1) the degree of variety and complexity in the facts to which the legal rule is to be applied; (2) the degree to which a trial court’s application of the legal rule relies on facts observed by the trial judge, such as a witness’s appearance and demeanor, relevant to the application of the law that cannot be adequately reflected in the record available to appellate courts; and (3) other policy reasons that weigh for or against granting discretion to trial courts.

Id. (quotation simplified).

¶20      The first two factors compare “the relative competencies” of “a fact-finding tribunal” and that of “an appellate court.” Id. ¶ 13. District courts and other fact-finding tribunals “are in a superior position to weigh facts that depend upon credibility determinations, the direct observation of witness testimony, and other evidence not fully captured in a written appellate record.” Id. On the other hand, appellate courts are in a better position to fashion “broad rules that can create a greater degree of consistency and predictability to future cases involving a particular mixed question.” Id. An inquiry that is highly “fact-intensive” is not one that “lend[s] itself to consistent resolution by a uniform body of appellate precedent.” Carbon County v. Workforce Appeals Board, 2013 UT 41, ¶ 7, 308 P.3d 477 (quotation simplified). Thus, a district court is “entitled to deference” where its determinations are “fact-intensive” because an appellate court “would be in an inferior position to review the correctness” of such a decision. Id. (quotation simplified).

¶21 Assessing whether a litigant’s unreasonable delay in bringing a claim has caused another party to sustain prejudice is a case-specific, fact-bound inquiry that will depend on the particular circumstances at hand, as well as—at least in many cases, including this one—on the district court’s perception of the progression of the litigation. Indeed, for this very reason, Utah appellate courts have concluded, in a number of analogous contexts, that appellate review of a district court’s prejudice determination should be deferential. See State v. De La Rosa, 2019 UT App 110, ¶ 9, 445 P.3d 955 (reviewing deferentially a district court’s “substantial adverse effect” determination, made in the context of assessing whether a new trial was warranted, “due to [the district court’s] advantaged position to judge the impact of legal errors on the total proceedings” (quotation simplified)); see also State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892 (stating that district courts “have discretion in granting or denying a motion for a mistrial . . . because of the[ir] advantaged position . . . to determine the impact of events occurring in the courtroom on the total proceedings” (quotation simplified)); Butler v. Mediaport Ent. Inc., 2022 UT App 37, ¶¶ 32, 48, 508 P.3d 619 (stating that “we review a district court’s harmlessness determination,” made in the discovery and disclosure context, deferentially “for abuse of discretion” because “a district court will almost always have a better vantage point than we do to make such a call”). We also observe that laches is an equitable doctrine, see Insight Assets, 2013 UT 47, ¶ 17, and “equitable inquiries are designed to be flexible, taking into account all relevant factors in light of the particular circumstances,” Jones v. Layton/Okland, 2009 UT 39, ¶ 17, 214 P.3d 859. “Because of the fact-intensive nature of equitable doctrines,” we generally grant district courts “broader discretion in applying the law to the facts.” Volonte v. Domo, Inc., 2023 UT App 25, ¶ 28, 528 P.3d 327 (quotation simplified). For all of these reasons, we conclude that a district court’s determination that a litigant has (or has not) sustained prejudice as a result of another party’s unreasonable delay in bringing a claim is entitled to deference from appellate courts and is a determination that should be reviewed for abuse of discretion.

¶22 We discern no abuse of discretion in the district court’s determination that Bruce sustained prejudice as a result of Nicole’s eight-year delay in asserting her right to the Home. The court’s ruling was well-reasoned and supported by evidence in the record. As noted, the court relied on the fact that Bruce had lived in the Home the entire time, raised the parties’ children there, and—perhaps most importantly—had taken care of all financial obligations related to the Home, including all maintenance and improvements.

¶23      We acknowledge Nicole’s point that Bruce enjoyed certain advantages as a result of living in the Home. As Nicole points out, Bruce would have had to pay for housing whether he lived in the Home or elsewhere, and Bruce was apparently able to take advantage of the equity in the Home. These facts could have led the district court to make a different determination with regard to whether Bruce was prejudiced by Nicole’s delay. But the presence of conflicting evidence does not compel reversal here. Given the applicable standard of review, the relevant question is not whether we would have made the same determination had we been sitting as the assigned trial-level arbiters in this case; rather, the relevant question is whether we discern an abuse of discretion in the decision the assigned judge made. See Stichting Mayflower Mountain Fonds v. United Park City Mines Co., 2017 UT 42, ¶ 49, 424 P.3d 72 (stating that “[t]he question presented is not whether we would have granted” the motion in question, but instead “whether we find an abuse of discretion in the district judge’s decision to deny the motion”). Where the court’s decision is supported by evidence in the record and free from legal error, we will not disturb it. And that is the case here.

¶24      Nicole resists this conclusion on three additional grounds. First, she points out that Bruce also delayed in asserting a right to the Home, and she complains that the district court applied the principles of laches in an uneven manner. But on this point, the district court made a specific determination that, although Bruce delayed the invocation of his claim to the Home, Nicole did not sustain any prejudice as a result of Bruce’s delay. The court noted that, during the time between her “abandonment” of the Home and the filing of Bruce’s Petition, Nicole “did not have to satisfy any financial obligations related to” the Home, “including those required by the Decree.” The court’s determination was therefore supported by evidence in the record and, while a different judge might have reached a different conclusion on these facts, we cannot say that the court’s ruling was an abuse of its discretion.

¶25      Second, Nicole asserts that Bruce should not be able to take advantage of equitable doctrines such as laches because, in her view, Bruce had “unclean hands” due to his failure to pay alimony and child support, as required by the terms of the Decree, during the years he lived in the Home. See Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (“The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” (quotation simplified)). But while Nicole (successfully, as it turned out) asked the district court to award her back alimony and child support, she never asked the district court to apply the doctrine of unclean hands, and her arguments in this regard are therefore unpreserved for appellate review. See State v. Johnson, 2017 UT 76, ¶ 18, 416 P.3d 443 (“A failure to preserve an issue in the trial court generally precludes a party from arguing that issue in an appellate court, absent a valid exception.”).

¶26      Nicole does not explicitly ask us to utilize any of the exceptions to our preservation requirement, but she does assert that the district court erred by failing to “sua sponte” apply the unclean hands doctrine. Certainly, a court may invoke that doctrine without being asked to do so. See 30A C.J.S. Equity § 116 (2023) (“A defense of unclean hands need not be pleaded. The doctrine may be applied by the court sua sponte.”). But the fact that a court may invoke the doctrine in a sua sponte manner does not relieve a party of its otherwise-applicable obligation to preserve issues for appellate review. Indeed, construed liberally, Nicole’s argument—that the district court erred by failing to sua sponte invoke the unclean hands doctrine—is an assertion that the court plainly erred by not concluding that Bruce’s unclean hands barred him from accessing equitable doctrines like laches. But this assertion fails because plain error review no longer exists in civil cases like this one. Kelly v. Timber Lakes Prop. Owners Ass’n, 2022 UT App 23, ¶ 44, 507 P.3d 357. Because plain error review is unavailable, and because Nicole does not ask us to employ any other exception to our preservation requirement, the fact that her “unclean hands” argument is unpreserved requires us to reject her argument without reaching its merits.

¶27      Finally, Nicole asserts that Bruce’s Petition was barred by the doctrine of res judicata. Essentially, she asserts that, because the parties already litigated the issue of entitlement to the Home, and because the Decree awarded the Home to her, Bruce is barred from relitigating that issue now. Nicole correctly asserts that res judicata is not categorically inapplicable in divorce cases. See Throckmorton v. Throckmorton, 767 P.2d 121, 123 (Utah Ct. App. 1988) (“The doctrine of res judicata applies in divorce actions.”). But “Fi]n the family law context, our legislature has given district courts the authority 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.” See Robertson v. Stevens, 2020 UT App 29, ¶ 7, 461 P.3d 323 (emphasis added); see also Utah Code § 30-3-5(5). In this context, a party may seek post-judgment modification of the property distribution provisions of a divorce decree, but in order to succeed in that endeavor the party “must demonstrate that a substantial change in circumstances has occurred since the entry of the decree.” See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (quotation simplified); see also Throckmorton, 767 P.2d at 123 (“[T]he application of res judicata is unique in divorce actions because of the equitable doctrine which allows courts to reopen alimony, support, or property distributions if the moving party can demonstrate a substantial change of circumstances since the matter was previously considered by the court.”).

¶28 Thus, modification of the Decree’s property distribution provisions is appropriate—even post-judgment and even taking into account principles of res judicata—so long as Bruce can demonstrate that, since entry of the Decree, there has been a substantial change of circumstances that would justify the court taking a second look at the terms of the distribution. And on that point, Nicole raises no challenge; indeed, in her reply brief on appeal she makes clear that she “is not arguing lack of changed circumstance,” and she affirmatively acknowledges that, in this case, “there have been changed circumstances.” Thus, the court had the authority to revisit the property distribution provisions of the Decree, and we reject Nicole’s argument to the contrary.

¶29    For these reasons, we perceive no abuse of discretion in the district court’s determination that Bruce was prejudiced by Nicole’s unreasonable delay in asserting her right to possess the Home. Because Nicole does not contest the other element of laches—unreasonable delay—both elements are met. We therefore affirm the district court’s determination that the equitable doctrine of laches barred Nicole’s claim to the Home, and on that basis we affirm the court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce.


¶30      Next, we address Nicole’s challenge to the court’s award of attorney fees to Bruce, incurred in connection with litigating issues related to the Home. On this point, we find merit in Nicole’s arguments, and we therefore reverse the court’s fee award.

¶31 Bruce’s fee request was grounded in Utah’s bad-faith attorney-fees statute, which empowers courts to “award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” See Utah Code § 78B-5-825(1). Before awarding fees under this section, a district court—in addition to determining that the requesting party is the “prevailing party”—must make specific findings that the opposing party’s claim is (1) “without merit” and (2) “not brought or asserted in good faith.” Rocky Ford Irrigation Co. v. Kents Lake Reservoir Co., 2020 UT 47, ¶ 76, 469 P.3d 1003 (quotation simplified). These two findings “must be made independently” from one another. Still Standing Stable, LLC v. Allen, 2005 UT 46, ¶ 12, 122 P.3d 556. Nicole asserts that the court failed to make a specific finding that her claims and defenses regarding the Home were without merit, and she maintains that the fee award was therefore improper. We agree with Nicole.

¶32      While the court made a specific finding that Nicole’s claims and defenses regarding the Home were asserted in “bad faith” and on a “retaliatory” basis, it made no specific finding that Nicole’s claims were without merit. Bruce acknowledges the lack of an express finding on this point, but he asserts that we can infer such a finding from (a) the fact that the court rejected Nicole’s claims on their merits (i.e., that she lost) and (b) the court’s specific bad-faith finding. We see the matter differently.

¶33      First, a determination that a party lost on the merits is not equivalent to a determination that the party’s claims were without merit for purposes of the bad-faith statute. “Without merit” in this context means something worse than just having a losing claim. Indeed, our supreme court has stated that the term “without merit,” as used in the bad-faith statute, “implies bordering on frivolity,” with the term “frivolous” meaning “of little weight or importance having no basis in law or fact.” Cady v. Johnson, 671 P.2d 149, 151 (Utah 1983) (quotation simplified); see also Migliore v. Livingston Fin. LLC, 2015 UT 9, ¶ 31, 347 P.3d 394 (“To determine whether a claim is without merit, we look to whether it was frivolous or of little weight or importance having no basis in law or fact.” (quotation simplified)). And on at least one occasion, our supreme court has concluded that a losing claim was not “without merit,” because the claim—even though it was not the prevailing claim—involved a question of “first impression” and “had a basis in law and fact.” See In re Olympus Constr. LC, 2009 UT 29, ¶ 31, 215 P.3d 129. We therefore may not infer, merely from the district court’s rejection of Nicole’s claims on their merits, that the court considered those claims to be so meritless as to be “bordering on frivolity.” See Cady, 671 P.2d at 151.

¶34 Nor may we draw that inference from the court’s “bad faith” finding. As noted already, the two separate findings— without merit and bad faith—“must be made independently” from one another. Still Standing Stable, 2005 UT 46, ¶ 12. And this makes sense, because the two elements of the statutory test are aimed at two different things. The first element (“without merit”) is concerned with the objective quality of the claim itself, see Migliore, 2015 UT 9, ¶ 31, while the second element (“bad faith”) is concerned with the party’s subjective motivation for bringing it, see Blum v. Dahl, 2012 UT App 198, ¶ 9, 283 P.3d 963 (“A finding of bad faith turns on a factual determination of a party’s subjective intent.” (quotation simplified)). Both elements must be met before a court may award attorney fees under the bad-faith statute. And the presence of one element does not necessarily imply the presence of the other.

¶35 For instance, a party may have a completely frivolous claim that lacks any basis in law or fact, but that party may not be aware of the claim’s lack of merit at the time it was filed. In that situation, the first element of the test is met but, depending on the circumstances, the second might not be. Conversely, a party may have a solid (albeit losing) claim that has a basis in both law and fact, but the party might be bringing that claim for abusive or improper reasons. In that situation, the second element might be met but the first one wouldn’t be. In the case at hand, our review of the record indicates that this might be the situation: Nicole had in her corner a provision in the Decree awarding her the Home, and Bruce had not taken any action to seek modification of that provision in eight years. Given these facts, it is certainly not obvious to us that Nicole’s claims and defenses regarding the Home were “bordering on frivolity,” see Cady, 671 P.2d at 151, even if we take at face value the court’s finding that Nicole brought the claims in a bad-faith effort to retaliate against Bruce.

¶36 Accordingly, we conclude that the absence of any specific finding that Nicole’s claims were without merit renders the district court’s attorney fees award improper.[1]


¶37 We discern no abuse of discretion in the district court’s determination that laches barred Nicole’s claims and defenses regarding the Home, and on that basis we affirm the district court’s grant of Bruce’s Petition and its accompanying order awarding the Home to Bruce. But due to the absence of any finding that Nicole’s claims and defenses were without merit, we reverse the court’s award of attorney fees to Bruce pursuant to the bad-faith statute, and we vacate the part of the court’s judgment that required Nicole to pay $7,390.67 in fees to Bruce.

Utah Family Law, LC | | 801-466-9277

[1] Again invoking the bad-faith statute, Bruce asks us to award him attorney fees he incurred on appeal. We must reject this request because we have reversed the award of attorney fees in the district court. Moreover, we do not consider Nicole’s appellate arguments to have been brought in bad faith.

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Have You Heard That Fathers Defeat Mothers’ Claims of DV and Child Abuse by Claiming Parental Alienation?

We all know the aphorism, “If it looks/sounds to good to be true, it probably is [not true].” This also means, however, that if it looks/sounds too 𝙗𝙖𝙙 to be true, it probably is [not true] too.

Can we all agree that the following claim looks, on its face, too bad to be true?:

A George Washington University Law School article shows that mothers are statistically up to 90% more likely to lose custody of their children when they go on record about abuse. Abusive fathers, who claim parental alienation are almost always granted custody.

So, is the claim true?

I found the article: Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, by Joan S. Meier George Washington University Law School.

Here is what that article actually claims (this is not the entire article, of course, and I have my doubts about the methodology and the resulting accuracy of the claims themselves, but I digress):

Spoiler alert: the article does not make any “women lose custody 90% of the time when they report abuse” claim.

Quotations directly from the article itself:

“Focusing on cases where it was determined that mothers started with possession of the children, and alleged some type of abuse by the father, the data show mothers losing custody in 26% (284/1111) of cases.”


It is also notable that when mothers report mixed types of child abuse (sexual and physical) their custody losses skyrocket (from under 30% (39/135) up to 50%)(11/22).


• When Fathers cross-claim alienation, courts are more than twice as likely to disbelieve Mothers’ claims of (any) abuse than if fathers made no alienation claim; and

• When Fathers cross-claim alienation, courts are almost 4 (3.9) times more likely to disbelieve Mothers’ claims of child abuse than if fathers made no alienation claim.


As the chart indicates, when fathers claim alienation, the rate at which mothers lose custody shoots up from over 25% to over 50%. That is, fathers’ alienation claims roughly double mothers’ rates of losing custody. When courts credit the alienation claim, rates of maternal losses of custody increase more drastically:

Mothers’ Custody Losses When Courts Credit Fathers’ Alienation Claims

Type of Abuse Alleged Mother Lost Custody:

DV (domestic violence): 60% (15/25)
CPA (child physical abuse): 59% (10/17)
CSA (child sexual abuse): 68% (13/19)
DVCh (domestic violence and child physical abuse): 79% (19/24)
CACSA (child physical abuse and child sexual abuse): 100% (6/6)
Any abuse: 73% (60/82)


“AKA” cases: those in which a court viewed a mother as alienating in her behavior but did not use the term “alienation.”

Mothers’ Custody Losses when Found to have Committed AKA


Custody Losses by Type of Abuse Alleged

Custody Losses When Abuse was Proven

DV  62% (24/39) DV  60% (3/5)
CPA  61% (17/28) CPA  50% (1/2)
CSA  58% (25/43) CSA  –
DVCh  55% (16/29) DVCh  –
CACSA  78% (7/9) CACSA  100% (1/1)
Any  60% (89/148) Any  63% (5/8)


The article is definitely food for thought, but clearly does not find that mothers who allege abuse are 90% more likely to lose/not win custody.

Additionally, one of my critiques of the article is this: it does not reveal whether the abuse-alleging mothers who lost/did not win custody was due purely to their alleging abuse or purely because they were found to have engaged in parental alienation or something like it. For example, if these mothers were themselves child abusers or were found to be unfit parents for other reasons (i.e., child neglect, substance abuse, lacking sufficient housing, ability to provide financially, practicing poor hygiene, insufficient bonding, etc.), how many of them would have lost/not won custody anyway? The article does not address this.

But even if the only reason these mothers lost/did not win custody was due to the court finding them to have engaged in parental alienation, would that not be reason enough? Now, I’m not asserting that all cases of actual parental alienation should cause a mother (or father committing alienation) to lose/not win custody (level of severity must be considered), but parental alienation would be, in my professional opinion, sufficient grounds for awarding custody of children to the other parent, assuming the other parent were found, on balance to be 1) sufficiently fit as a parent; and 2) the more fit of the two parents.

Utah Family Law, LC | | 801-466-9277

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Why Get it Straight From the Horse’s Mouth When You Can Get a Truncated Version, Second-Hand?

When a custody evaluator and/or private guardian ad litem is/are appointed in a divorce case in which custody and parent-time of the children is disputed, they usually interview the children who are the subject of the custody and parent-time dispute and then make observations and recommendations regarding what the custody and parent-time awards should be based in part on those interviews.

But they never record their interviews with the children.

Instead, every custody evaluator (except one) that I know and every PGAL that I know wants us to believe (as opposed to knowing, based upon an objectively verifiable recording) that 1) they did in fact speak with the children; 2) what the custody evaluators and PGALs report second-hand and in summary fashion accurately reflects what was (and was not) asked of the children and what the children said (and did not say) in response; and 3) that the custody evaluator’s and PGAL’s assessment of the children’s credibility (assuming–not knowing–that the child were interviewed in the first place and that what the children allegedly said is in fact what the children said) is correct.

Such a policy is incongruous with the way any other witness account is presented to a court.

Courts claim they need to know the child’s “intent [whatever that means in the context of a child custody dispute] and desires.”

Yet the court goes out of its way to ensure that what we get from custody evaluators and/or PGALs not just second-hand accounts of the child’s purported statements, but summary second-hand accounts of the child’s purported statements.

Then, on the basis of the purported, second-hand summary accounts, the non-witness PGAL “makes a recommendation regarding the best interest of the minor” by ostensibly “disclos[ing] the factors that form the basis of the recommendation” when the purported factors have–not necessarily, but by design, no less–no objectively verifiable basis in the child’s testimony (because there is no testimony). Such a “take my un-recorded, unverifiable, second-hand word for it” process elevates faith over fact, and needlessly.

Yet by way of the court interviewing the child directly and on the record (or by having the child deposed in a fitting, appropriate setting, of course), the court could easily obtain objectively verifiable knowledge of not only the child’s “intent and desires” stated in the child’s own words but in the same way also obtain knowledge of the child’s relevant experiences, observations, feelings, opinions, and anything else the court may want to learn that bears on the child custody and parent-time award decisions.

Everyone who tries to justify the policy against child testimony does so by claiming that there is no equal or superior alternative. Such claims are without merit.

I would be cruel and unreasonable if I did not concede that a child should not be questioned on and for the record if it were proved (as reflected in particularized findings, not generalized views or preferences) that that particular child likely will (not merely could) be harmed by testifying to the extent that the value of the testimony does not outweigh the harm. In such a situation barring that child from testifying would be warranted.

But when avoiding the subject altogether is worse for the child than confronting it, question the child on the record–for the child’s sake. For the sake of the truth- and fact-finding processes. It is cruel and unreasonable to silence the child that way.

Many children are not only willing to testify to the facts bearing upon the child custody and parent-time awards, they want to testify to them. Even when it may be unpleasant to address the topics. Regardless of how eager children may be to testify, they have the greatest stake in the child custody and parent-time awards. They deserve to be heard from, and in their own words. Who would (who could, credibly) gainsay that?

And the notion that a judge or commissioner interviewing a child, or a child being questioned in a deposition (and the child could be deposed by the PGAL, if there were sufficient facts to support a conclusion that the child is in danger of suffering verifiable serious, irreparable harm were the child questioned by the parents’ respective attorneys) would inherently cause a child unjustifiable harm is self-evidently false.

First, I have personal experience with children testifying for the record in child custody and parent-time proceedings without incident. I (and others who have the same experience actually deposing a child) know that it is not inherently harmful to every child who is old enough to testify competently.

Second, children regularly testify in proceedings substantively indistinguishable from divorce/parentage child custody and parent-time proceedings (e.g., contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases). This is proof that child testimony–though it may be frightening or saddening for some children–is not universally catastrophic for all (even most) children who are old enough to testify competently.

Thus, the assertion that judges, domestic relations commissioners, and lawyers cannot competently question a child in a divorce-based child-custody and parent-time dispute unless they are “specially trained as PGALs (especially when the ‘special training’ can be obtained in a matter of a few days’ time)” is invalid on its face. If one need not be “specially trained” to question a child in contested child abuse, neglect, or dependency cases, contested petitions for termination of parental rights cases, contested adoption and guardianship cases, one need not be “specially trained” as a PGAL to question a child competently and with due sensitivity.

My biggest worry (among many) about the way custody evaluations and PGAL appointments work in Utah is when custody evaluators and PGALs–who can by recording child interviews easily provide the parents and the court with an objective way of verifying whether the children were interviewed, how well or poorly they were interviewed, what they were asked (and not asked) and what they said (or did not say) in response–refuse to do so.

Utah Family Law, LC | | 801-466-9277

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What Assumptions Can You Make About Someone Who Has Been Divorced Twice?

You can assume whatever you want about anyone or anything, but that does not mean your assumptions are accurate.

And there is this from Merriam-Webster: “Although presume and assume both mean “to take something as true,” “presume” implies more confidence or evidence backed reasoning. An “assumption” suggests there is little evidence supporting your guess.

People make assumptions all the time, often (but not always) to their detriment and the detriment of the people of whom they make assumptions. You know what they say about people who assume.

That stated, assumptions based upon sufficient evidence are not only reasonable but often warranted or even wholly justified. If you see someone turning red and then blue and appearing to be unable to breathe while making the sign of choking, you can assume he/she is choking. But it’s still an assumption. You didn’t see the would-be choking victim actually swallow anything, after all.

So, what can you safely assume about someone of whom you know nothing other than the fact that he/she has been divorced twice? In fairness to one contemplating making an assumption and to the person twice divorced:

  • It’s fair to wonder why someone has been divorced twice and whether the divorcee may not be “marriage material”—especially if you are contemplating marrying the twice-divorced person.

o   It’s fair to assume (assuming—see what I did there?—you want your marriage to last) that if you intend to marry the twice-divorced person, your marriage will have a lower chance of success than a marriage to someone who has never been divorced. Statistics indicate that in the U.S., just under 50% percent of first-time marriages end in divorce, while 65-67% of second marriages, and about 74% of third marriages end in divorce.

  • It’s unfair to assume that the divorce was the twice-divorced person’s fault either or both times. It’s fair to “wonder if”, but not to “assume that”.
  • It’s also fair to fair to “wonder if”, but not to “assume that”:

o   the twice-divorced person was the cause of one or both of the divorces and whether the divorcee has poor judgment in selecting spouses.

o   the twice-divorced person is either a sucker or someone who marries suckers.

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In re Adoption of J.E. – 2024 UT App 34 – termination of parental rights – adoption

In re Adoption of J.E. – 2024 UT App 34



PERSONS UNDER EIGHTEEN YEARS OF AGE. K.E., Appellant, v. K.M.L. AND L.L.L., Appellees.

Opinion No. 20230162-CA, Filed March 14, 2024 Third District Court, West Jordan Department

The Honorable Matthew Bates No. 222900154

Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant

Bradley A. Schmidt, Attorney for Appellees

JUDGE DAVID N. MORTENSEN authored this Opinion, in which


¶1        In connection with an adoption proceeding brought in district court, the rights of a biological father were terminated. The father now claims on appeal that the district court relied impermissibly on generalized concerns of his minor children’s need for permanence and that our recent decision in In re L.L.B., 2023 UT App 66, 532 P.3d 592, compels reversal here. We agree with the father and reverse.


¶2        KML[1] (Mother) and KE (Father) have two minor children,[2] who are the subject of this appeal—EE, age sixteen, and LE, age thirteen. For much of the children’s lives, Father has been incarcerated. As relevant here, from 2013 to 2018, Father was incarcerated. During that period, his time with EE and LE “consisted of, at most, a weekly visit” with them at the prison.

¶3        In 2018, Father was released from prison on parole. Sometime during this same period, Mother and Father divorced and Mother married LLL (Stepfather). According to Father, after the divorce, the parent-time arrangement allowed him visits every other weekend. But Father saw EE and LE only once in the summer of 2018. Beyond that visit, Father says he “tried to” exercise his parent-time four times, but that each time he went to Mother’s home for the exchange as required by the divorce decree, Stepfather told him the decree required Father to text Mother. Father disputes the texting requirement. The final time Father attempted to visit the children, he found that they had moved and the “house was empty.” Mother had not given him an updated address or contact information. Father notified the law enforcement officers whom Mother and Father used to communicate with one another.

¶4        In January 2020, Father returned to prison because of a parole violation, and he remained there until December of that same year. Following his release, he tried contacting Mother, but when he called the “last phone number [he] had with her[,] . . . there was nothing.” He asked his family to help him contact Mother, but they had no way to reach her either. Father returned to prison in November 2021 because of another parole violation. While incarcerated, he tried to call the children but still did not have updated contact information. Father says he also wrote letters for the children but did not send them because he did not have a current address for Mother.

¶5        In April 2022, Mother and Stepfather petitioned the district court for termination of Father’s parental rights and Stepfather’s adoption of the children. The court bifurcated the proceedings and, following a hearing in November 2022, determined that Father met the statutory ground of abandonment for termination of parental rights.

¶6        In January 2023, during a second evidentiary hearing, the district court determined that it was in the best interest of EE and LE to terminate Father’s parental rights. The court determined that the children presently had “no relationship” with Father. Both children testified that they had “no memory of him, and they would not recognize him if they saw him.” The court also determined that for the last four years, Stepfather had “assumed the role of natural father” to the children, including socializing with them, playing with them, attending their school and extracurricular activities, assisting with their schoolwork, and caring for them, such as by driving them places and making them meals. Both EE and LE “testified to the strong emotional bond” they had with Stepfather and their desire to be adopted by him, which the court gave some weight in consideration of their ages. The court also determined that the “destruction of the relationship between the children and [Father’s] extended family . . . [was] due to [Mother’s] failure to respond to efforts” made by the family to see the children. The court determined that Mother was “not supportive of the relationship between the children and [Father’s] family.” During the hearing, Father requested reconsideration of the court’s abandonment finding. The court took new evidence on the issue but ultimately did not alter its finding and terminated Father’s parental rights.

¶7          In February 2023, the district court held a hearing concerning Stepfather’s adoption of EE and LE, during which Father asked the court to stay the adoption pending appeal. Following arguments from each party, the district court proceeded with the adoption, determining that it was “in the best interests of the [children] that [the] adoption go forward.”

¶8          Father appeals.


¶9          On appeal, Father argues that the district court erred by deciding that termination of Father’s parental rights was in the best interest of EE and LE. “Whether a parent’s rights should be terminated presents a mixed question of law and fact.” In re B.R., 2007 UT 82, ¶ 12, 171 P.3d 435. “A lower court’s best-interest ruling is reviewed deferentially,” but we do not limit our review to considering whether any relevant facts have been left out; we also “assess whether the court’s determination that the clear and convincing standard had been met goes against the clear weight of the evidence.” In re L.L.B., 2023 UT App 66, ¶ 16, 532 P.3d 592 (cleaned up).


¶10        “The right of parents to raise their children is one of the most important rights any person enjoys.” In re D.S., 2023 UT App 98, ¶ 16, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). Before terminating parental rights, a district court must find that (1) “one or more of the statutory grounds for termination are present” and (2) “termination of the parent’s rights is in the best interests of the child.” In re L.L.B., 2023 UT App 66, ¶ 17, 532 P.3d 592 (cleaned up). A district court “must make both of these findings . . . by clear and convincing evidence and the burden of proof rests with the petitioner.” Id. (cleaned up). Father has not challenged the district court’s ruling that statutory grounds for termination existed, so we turn to the best-interest analysis.

¶11      Our supreme court recently determined that a “court must start the best interest analysis from the legislatively mandated position that wherever possible, family life should be strengthened and preserved.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (cleaned up).[3] Relying nearly entirely on In re L.L.B., 2023

UT App 66, 532 P.3d 592, a recent decision from our court in which we reversed the termination of a father’s parental rights, Father argues that the court erred when it determined that termination and adoption was in the best interest of EE and LE. Father does not claim that the court’s findings were erroneous; instead, he asserts that the facts taken together do not support the court’s ruling. “The best-interest inquiry is intended as a holistic examination of all of the relevant circumstances that might affect a child’s situation.” Id. ¶ 21 (cleaned up); see also In re D.S., 2023 UT App 98, ¶ 18 (“The best-interest inquiry is wide-ranging and asks a court to weigh the entirety of the circumstances of a child’s situation . . . .” (cleaned up)). A district court undertakes this analysis from the child’s perspective and must consider the child’s “physical, intellectual, social, moral, and educational training and general welfare and happiness.” In re L.L.B., 2023 UT App 66, ¶ 21 (cleaned up). To support his argument that the district court erred, Father argues that the “facts and legal analysis are almost identical” between his case and In re L.L.B. This is an overstatement of the cases’ factual parallels, and we are quick to point out where the two cases diverge; however, we still conclude that In re L.L.B. is factually similar enough to be helpful in reaching our ultimate conclusion that the district court did err.

¶12      In In re L.L.B., like the situation in the case before us, the district court terminated the father’s rights in order to allow a stepfather to adopt a child. Id. ¶ 15. Our court reversed. Id. ¶ 35.

¶13      In that case, less than a week after the birth of his child, the father left due to a drug relapse. Id. ¶ 2. Over the course of the next year, the father saw the child only twice. Id. A paternity agreement then granted the mother sole custody and awarded parent-time to the father. Id. ¶ 3. Three years later, the mother married the stepfather, with whom she and the child lived from that point on. Id. ¶ 4. For approximately five years, the father used his parent-time, but then the parents got into an argument. Id. Around that same time, the father and child were in a four-wheeling accident, which the mother suspected had been caused by the father’s alcohol use. Id. In the months that followed, the father’s parent-time was supervised because the mother was concerned that he was using drugs and alcohol around the child. Id.

¶14 About two years later, the mother and stepfather filed a petition in district court for termination of the father’s parental rights and the stepfather’s adoption of the child. Id. ¶ 5. At trial, the mother testified that in the nearly two-year period leading up to the proceedings, the father had attempted to contact the child only twice. Id. ¶ 7. She also testified that he was severely behind on child support payments, and he had never been involved in the child’s education. IdThe guardian ad litem testified that the child did not have a relationship with the father due to his absence and that, in contrast, the stepfather was “an excellent father” who had a “great bond” with the child. Id. ¶ 13 (cleaned up). Over the course of the case, the father relapsed, went to jail, and got sober. Id. ¶ 12. At the time of trial, he had a job and was again paying child support. Id.

¶15 The mother admitted that since filing the termination petition, she had not responded to the father’s requests to see the child. Id. ¶ 7. The father’s mother testified that she had tried “to stay in contact” with the child but had “difficulty getting responses” from the mother. Id. ¶ 9. After the termination petition had been filed, the father had seen the child once and had written letters to the mother, sent a gift, and emailed the child. Id. ¶ 11.

¶16 The district court concluded that the child deserved a “healthy, stable family relationship” with the stepfather, who was the child’s father figure, and that it was in the child’s best interest for the adoption to go forward. Id. ¶ 15 (cleaned up). Because the adoption could not occur without termination of the father’s parental rights, the district court determined “by clear and convincing evidence that it [was] ‘strictly necessary’” to terminate the father’s rights. Id. Our court reversed because the district court’s conclusion that termination was in the child’s best interest went “against the clear weight of the evidence.” Id. ¶ 34. We will discuss some of the applicable reasoning from In re L.L.B. in our ensuing analysis.

¶17      Here, the district court based its decision that termination was in the best interest of EE and LE primarily on two categorical concerns. First, the court stated that the children needed permanency by reasoning that it was “in the best interest of the children to have a normal family life and a permanent home and to have a positive nurturing family relationship with a mother and father.” Second, the court reasoned that Father’s absence while incarcerated required termination of his rights because “weekly visits at the prison . . . are not an adequate substitute to a father in the home and do little to maintain the bond between parent and child.” But categorical concerns such as these are not enough to overcome the legislative presumption that it is in the best interest of children to be raised by their natural parents. We now address why these concerns are insufficient grounds to terminate Father’s rights.

  1. Permanency

¶18 “As our supreme court has explained, categorical concerns about the lack of permanence of an option other than adoption are not enough, otherwise termination and adoption would be strictly necessary across the board.” In re L.L.B., 2023 UT App 66, ¶ 23, 532 P.3d 592 (cleaned up). Just as in In re L.L.B., while we understand the concern about what Stepfather’s legal rights may be regarding the children if Mother dies or Mother and Stepfather divorce,[4] this concern is present in many termination cases, and it does not lead us to the conclusion here “that termination of a parent’s rights is in the [children’s] best interest.” Id.

¶19      Relatedly, Father argues that the district court erred because it did not find that “the present quality of the [c]hildren’s relationship with Stepfather would be changed by adoption.” We agree and see no evidence on the record that—excluding a tragedy like Mother’s death—the adoption will change the living situation or custody of the children. The absence of such a change “is a factor that may weigh against termination in some cases.” In re B.T.B., 2018 UT App 157, ¶ 56, 436 P.3d 206 (cleaned up), aff’d, 2020 UT 60, 472 P.3d 827. Just as in In re L.L.B., we see no findings from the district court that EE and LE’s “current living situation [is] not healthy and stable” or that their living situation will change in any way if Stepfather does not adopt them. See 2023 UT App 66, ¶ 27. Indeed, we see no evidence, or even an assertion, that Stepfather’s love, care, or attachment would change in the absence of an adoption decree.

¶20      Thus, the categorical concern of stability and permanency does not support the court’s decision to terminate Father’s parental rights.

  1. Incarceration

¶21      Because Father has been in and out of prison for much of the children’s lives, the district court relied on the categorical concern of his incarceration to support its termination decision. While it is true that it is much harder for incarcerated parents to be engaged in their children’s lives, the legislature’s policy that we must begin with an assumption that it is in the best interest of children “to be raised under the care and supervision of [their] natural parents” does not support a categorical rule that incarcerated parents’ rights should be terminated. In re D.S., 2023 UT App 98, ¶ 18, 535 P.3d 843 (cleaned up), cert. granted, Jan. 25, 2024 (No. 20230877). In In re D.S., our court recently reversed a juvenile court’s termination of parental rights in the case of a father who was incarcerated at the time. Id. ¶ 33. The father there expressed “a desire to have a stronger relationship” with his children. Id. ¶ 11 (cleaned up). This court determined that “a parent’s desire to build and maintain—coupled with efforts to actually maintain—a meaningful relationship with a child is a factor that will often weigh in favor of . . . a determination that it is in the child’s best interest to keep the relationship intact.” Id. ¶ 27. Our court also explained that the father’s desire to have visitation with his children upon his release should also be “viewed positively” in the best-interest inquiry. Id.

¶22      Here, Father is currently incarcerated and has not, at the present, turned his life around like the father in In re L.L.B, 2023 UT App 66, ¶ 30, 532 P.3d 592However, Father has expressed that he misses the children and has a desire to “support them in their daily lives, their school, [and] their personal affairs.” Father said that he is “glad that they are living a decent” life, but he still wants to be a part of that life. We acknowledge and credit Father’s desire to build a relationship with the children despite his incarceration. Additionally, from 2013 to 2018, Father interacted with the children in the only avenue available to him as an incarcerated parent—through “at most, a weekly visit” at the prison. And though these visits did not continue during his subsequent periods of incarceration, it was at this point that Father had no means of contacting his children due to Mother’s actions.

¶23      Furthermore, there is no evidence that Father’s relationship with EE and LE is harmful to them—just as in In re L.L.B. where there was no finding that the father’s presence “affirmatively harmed” the child or that the father’s “attempts to exercise his parental rights” in any way “negatively affected or disrupted” the child’s life. 2023 UT App 66, ¶ 24; see also In re D.S., 2023 UT App 98, ¶ 24 (reversing termination of an incarcerated father’s parental rights in part because there was “no indication that [the father’s] continuing relationship” with the children was “harmful to them, rather than merely perhaps inconvenient”). Here, neither party has raised any concerns about Father ever

posing a threat to or endangering the children. This is important. Even in In re L.L.B., though the father had turned his life around, there were instances in the past of concern for the child’s safety, such as the four-wheeling accident and supervised visits over fear of the father’s substance abuse. See 2023 UT App 66, ¶ 4. We note that in In re L.L.B our court emphasized that courts must weigh parental conduct in the past against later conduct and that the father was a “presently fit and capable” parent. Id. ¶ 29 (cleaned up). We only point to this concern to emphasize that no such circumstance exists here.

¶24      Thus, not only is the district court’s reliance on the fact of Father’s incarceration unsupported in this case, but the creation of such a categorical rule goes against Utah’s statutes and caselaw.

III. Other Concerns

¶25      Mother and Stepfather, in an effort to distinguish In re L.L.B. from the present case, point to the fact that, unlike Father, the father in that case made “many” attempts to communicate with the children after his incarceration. 2023 UT App 66, ¶ 29, 532 P.3d 592. However, Father’s argument is well-taken that the district court determined this lack of communication was “largely the result of Mother and Stepfather’s interference.” Mother moved the children without telling Father or providing any means of contacting them. This lack of communication should not be held wholly against Father as it was the result of Mother’s actions; to do so would certainly encourage other parents to prevent communication in an effort to similarly strengthen their cases for termination of parental rights.

¶26      Relatedly, any lack of relationship—or as the court put it “destruction” of the relationship—between the children and Father’s extended family was due to Mother’s lack of support and her “failure to respond to [the extended family’s] efforts . . . to see the children.” Mother’s failure to respond to these efforts should likewise not be held against Father.

¶27      Thus, looking holistically at the evidence presented, as courts are required to do, see id. ¶ 21, we conclude that the evidence does not clearly and convincingly demonstrate that termination of Father’s parental rights was in EE’s and LE’s best interest. In our view, the primary bases for the district court’s decision were its categorical conclusions about the need for permanency and the insubstantial nature of a parent/child relationship when a parent is incarcerated. We view Utah precedent as precluding reliance on such categorical concerns. And we view the remainder of the district court’s findings to be insufficient to meet the required burden of proof once these bases are removed from the analysis. Given our legislature’s clear expression that, “as a matter of state policy, the default position is that it is in the best interest and welfare of a child to be raised under the care and supervision of the child’s natural parents,” id. ¶ 31 (cleaned up), we must reverse.

¶28      The court’s order in the adoption decree relied on the termination of all Father’s “rights, duties and responsibilities, including residual parental rights.” Accordingly, with our reversal of the termination order, we also reverse the adoption decree. While this decision is final, it does not preclude the possibility of future termination and adoption proceedings if there is a material change in circumstances.


¶29      The district court’s conclusion that the termination of Father’s parental rights was in the best interest of EE and LE was against the clear weight of the evidence. As a consequence of this error, the court also erred when it granted Stepfather’s adoption of the children in reliance on termination of Father’s rights. We therefore reverse.

Utah Family Law, LC | | 801-466-9277

[1] Regarding this opinion’s omission of periods following initials, see A.W. v. Marelli, 2024 UT App 8, ¶ 1 n.1. This practice is consistent with The Chicago Manual of Style, which states that if “an entire name is abbreviated, spaces and periods can usually be omitted.” The Chicago Manual of Style Online ¶ 10.12 (17th ed. 2017).

[2] A third child, JE, was initially a part of these proceedings but has since turned eighteen and is no longer included.

[3] In the same case, our supreme court determined that a court may terminate parental rights only “when it concludes that a different option is in the child’s best interest and that termination is strictly necessary to facilitate that option.” In re B.T.B., 2020 UT 60, ¶ 66, 472 P.3d 827 (emphasis added). The district court here made the legal determination that the legislature intended a strictly necessary requirement to apply to the Utah Adoption Act (UAA) for district courts. Yet, the court did not make any subsidiary findings or give reasoned analysis as to whether termination was strictly necessary here; instead, it simply noted in the order’s conclusion that it was strictly necessary to terminate Father’s rights to allow the adoption to proceed. Both parties make arguments on appeal whether the district court erred in this conclusion but neither addresses whether the strictly necessary requirement is even appropriate to apply.

The UAA applies to district courts and reads as follows: “The district court may terminate an individual’s parental rights in a child if . . . the individual’s parental rights are terminated on grounds described in Title 80, Chapter 4, Termination and Restoration of Parental Rights, and termination is in the best interests of the child.” Utah Code § 78B-6-112(5)(e).

Comparatively, the Termination of Parental Rights Act applies to juvenile courts and reads as follows: “[I]f the juvenile court finds termination of parental rights, from the child’s point of view, is strictly necessary, the juvenile court may terminate all parental rights with respect to the parent if the juvenile court finds any one of the [listed grounds for termination].” Id. § 80-4-301(1) (emphasis added).

The case in which our supreme court stated that the best interest of the child analysis includes the strictly necessary requirement was an appeal from juvenile court. See In re B.T.B., 2020 UT 60, ¶ 1. The supreme court has not yet addressed whether this analysis also applies to appeals from a district court— particularly given the absence of the “strictly necessary” language in the UAA.

Our court recently acknowledged, but did not answer, this same question in In re L.L.B. when it determined that it did not need to address the issue because “even without considering the strictly necessary part of the best-interest analysis . . . there [was] not clear and convincing evidence supporting the district court’s conclusion that termination of Father’s parental rights was in [the child’s] best interest.” 2023 UT App 66, ¶ 18, 532 P.3d 592. We conclude the same and will not address the issue further.

[4] The legislature might wish to consider that our court frequently sees this issue raised by stepparents who are concerned over what their legal role will be in a child’s life if their spouse—the child’s natural parent—dies. A statute addresses this concern for grandparents, but no such legal protections exist for stepparents. See Utah Code § 30-5-2(4); see also In re S.T.T., 2006 UT 46, ¶ 30, 144 P.3d 1083 (upholding the statute recognizing that the death of one parent creates potential conflict between the surviving parent and the “in-law” grandparents and, accordingly, providing “an avenue for grandparents and grandchildren to maintain their relationship” through visitation rights).

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I Am Going through a Custody Battle and the Other Parent Is Making False Statements About Me in Court. What Can I Do to Protect Myself and My Child?

If you want just my direct answer to this question, skip to the last paragraph, but I submit that you’ll have a much better understanding of the answer if you read all of this first.

This is and has been a major, serious problem in family law for as long as I can remember. It’s not getting better. It victimizes far too many innocent people who naively trust the legal system to value truth and justice above all.

Guilt by accusation. Accuse your spouse of being an abusive parent, and immediately the accused finds himself or herself in a position of guilty until proven innocent.

Judges (and that includes the domestic relations commissioner) are, with due respect to them, quite often (so often; more often than you’d expect or hope, frankly) suckers for substituting and accepting the seriousness of the allegations over the substance of the evidence. Why?

Many people innately know, but struggle to articulate it, either because it’s subconscious or too shameful to admit: the cowardly, lazy allure of “better safe than sorry” and “abundance of caution”. “Treat all allegations of spousal or child abuse as true,” so the “reasoning” goes, “and that way we prevent abuse, whether real or imagined.” Why go to all the trouble of investigating, factfinding, and truth seeking when abusers might lie and get away with it? No, better to treat pretty much every abuse claim as true. And if innocent parents (mostly men, but a fair and growing number of women too) are the victims of such a policy (ruined reputations, loss of standing in the community, loss of friends, loss of employment, being persecuted), it’s a price worth paying (especially when the judges and commissioners themselves don’t pay that price themselves) “if it saves just one life.” It’s obvious nonsense (no judge who treats people this way would ever want to be treated that way), but that is culture of the modern legal system. I wish I could deny it, but I’d be lying, if I did.

“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished.

But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say, ‘whether I do good or whether I do evil is immaterial, for innocence itself is no protection,’ and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”

― John Adams

When it comes to accusations of abuse (or even danger of being abusive), it’s terrifyingly far too often the opposite of the “Better that a hundred guilty men go free than to convict one innocent man.”

So, if you are being falsely accused, don’t rely on “I can’t prove a negative,” “accuser has the burden of proof,” or “innocent until proven guilty.” If you can prove you’re innocent, do it. Do everything in your power to prove your innocence. Spend the money and the time and the effort to fight for and to prove your innocence. Strive to hold the courts to being competent and impartial because when it comes to allegations of spousal or child abuse, many courts will not exercise the courage to dismiss such claims for a lack of proof.

Utah Family Law, LC | | 801-466-9277

(65) Eric Johnson’s answer to I am going through a custody battle and the other parent is making false statements about me in court. What can I do to protect myself and my child? – Quora

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2024 UT App 28 – Smith v. Smith

2024 UT App 28 – Smith v. Smith


JACQUELINE P. SMITH, Appellee,  v. DANIEL H. SMITH, Appellant.


No. 20220697-CA  Filed March 7, 2024  Third District Court, Salt Lake Department  The Honorable Robert P. Faust  No. 194902295

David Pedrazas, Attorney for Appellant

Deborah L. Bulkeley, Attorney for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1        This divorce case illustrates why the sequence of determining alimony matters. We recently clarified the three-step procedure for alimony in Fox v. Fox, 2022 UT App 88, 515 P.3d 481, cert. denied, 525 P.3d 1263 (Utah 2022). Here, the district court ordered an alimony award of more than double the receiving spouse’s demonstrated need because it accounted for the marital standard of living at the end of the analysis instead of at the beginning. Because the district court employed a backward version of the three-step procedure for alimony, we vacate and remand.


¶2        Daniel H. and Jacqueline P. Smith separated after more than thirty years of marriage. Their divorce case proceeded to a one-day bench trial that mostly addressed alimony. Daniel[1] represented himself at trial. At the trial’s conclusion, the district court took several issues, including the alimony award, under advisement and issued a memorandum decision four days later.

¶3        On her financial declaration used at trial, Jacqueline indicated her monthly net income was $3,274.55 and her monthly expenses were $5,193.79. Jacqueline listed all her line-item expenses in the “current amount” column and left the “marital expenses” column blank. Jacqueline presented no evidence at trial of the parties’ marital standard of living and no evidence that any of her listed expenses were different during the marriage than they were at the time of trial. She testified only to the reasons she sought a divorce. The district court examined the expenses and adjusted some of the amounts, finding that Jacqueline had reasonable monthly expenses of $4,184.61. This left her with an unmet need of $910.06 per month.

¶4        Daniel’s financial declaration admitted at trial indicated his monthly net income was $7,757 and his monthly expenses—all listed in the “current amount” column and none in the “marital expenses” column—were $8,280. The district court similarly examined Daniel’s expenses and made adjustments, finding that Daniel had reasonable monthly expenses of $4,013.90 plus his child support obligation of $703 for a total monthly expense of $4,716.90, leaving him with a “positive income of $3,040.10 a month.”

¶5      The district court stated that it adjusted the parties’ expenses in “an effort to put them on relatively equal footing, recognizing that the parties’ level of expenses at the time of trial are not representative of their marital standard of living.” Rather than award Jacqueline alimony in the amount of her unmet need, the district court calculated alimony by equalizing the difference between Jacqueline’s monthly negative income and Daniel’s monthly positive income. The court reasoned that “it is fair and equitable to equalize the combined disparity of $3,950.16 per month” and awarded Jacqueline $1,975 per month in alimony. The alimony award exceeded Jacqueline’s demonstrated monthly need by $1,064.94.

¶6        The district court instructed Jacqueline’s counsel to draft proposed findings and a proposed decree based on the court’s ruling. Daniel, having obtained counsel since trial, objected to the proposed findings on multiple issues, including the alimony calculation. The district court entered the findings and decree without making any changes to the alimony award.

¶7        Daniel then filed a motion to amend the findings, arguing that the district court did not make sufficient findings to support an alimony award that exceeded Jacqueline’s demonstrated need. The district court held a hearing on the motion, and Daniel asked the court to “recalculate and redetermine the alimony” because a “spouse’s demonstrated need must constitute the maximum permissible alimony award.” The court explained the $1,975 alimony award “equalizes the net income of the parties for both of them. That keeps them akin as we can to the lifestyle to which they were accustomed during the time of the marriage.” Daniel asserted that equalization should occur only “when somebody has an excess need that the other party can’t meet.” And Jacqueline suggested the court make “some additional findings” to support what she viewed as its “appropriate” effort to consider the parties’ needs and “augment those needs with excess income.” The district court denied Daniel’s motion, leaving the alimony award at $1,975 per month.


¶8        Daniel challenges the district court’s alimony award.[2] “We review a court’s alimony determination for an abuse of discretion.” Fox v. Fox, 2022 UT App 88, ¶ 11, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). Although “we will not lightly disturb a trial court’s alimony ruling, we will reverse if the court has not exercised its discretion within the bounds and under the standards we have set.” Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up).


¶9        “Under Utah law, the primary purposes of alimony are: (1) to get the parties as close as possible to the same standard of living that existed during the marriage; (2) to equalize the standards of living of each party; and (3) to prevent the recipient spouse from becoming a public charge.” Fox v. Fox, 2022 UT App 88, ¶ 15, 515 P.3d 481 (cleaned up), cert. denied, 525 P.3d 1263 (Utah 2022). An alimony award need not provide “for only basic needs but should be fashioned” in such a way “to approximate the parties’ standard of living during the marriage as closely as possible.” Id. (cleaned up). “The appropriate amount of any alimony award is governed by a multi-factor inquiry” now found in Utah Code section 30-3-5(10)(a). Miner v. Miner, 2021 UT App 77, ¶ 16, 496 P.3d 242. “[C]ourts must consider the statutory factors,” including “the financial condition and needs of the recipient spouse,” “the recipient’s earning capacity,” and “the ability of the payor spouse to provide support.” Rule v. Rule, 2017 UT App 137, ¶ 13, 402 P.3d 153; see also Dahl v. Dahl, 2015 UT 79, ¶ 94, 459 P.3d 276.

¶10      Thus, there are three steps to “the established process to be followed by courts considering an award of alimony.” Fox, 2022 UT App 88, ¶ 20 (cleaned up); see also Rule, 2017 UT App 137, ¶ 19. First, a court must “assess the needs of the parties, in light of their marital standard of living.”[3] Fox, 2022 UT App 88, ¶ 20 (cleaned up). Second, a court “must determine the extent to which the receiving spouse is able to meet his or her own needs with his or her own income.” Id. (cleaned up). Third, a court must “assess whether the payor spouse’s income, after meeting his or her needs, is sufficient to make up some or all of the shortfall between the receiving spouse’s needs and income.” Id. (cleaned up).

¶11      Here, the district court abused its discretion when it failed to properly follow this three-step process. Instead of considering the marital standard of living at step one when calculating each spouse’s need, the district court did so at step three, when it equalized the parties’ income. While we do not fault the court for wanting to “equalize the standards of living of each party,” as it is one of the purposes of alimony, see id. ¶ 15 (cleaned up), the court did not do so in accordance with the standards Utah appellate courts have established for an alimony determination.

¶12      In step one, the district court assessed both parties’ needs “at the time of trial” rather than in light of the marital standard of living. See id. ¶ 20. But it was not an abuse of discretion to have done so because neither Jacqueline nor Daniel provided any evidence of the marital standard of living. Indeed, both of their financial declarations listed their monthly expenses in the “current amount” column with nothing listed in the “marital expenses” column, despite the instructions on the form to complete both columns if one of the parties has requested alimony. It is incumbent upon the parties to present evidence of the marital standard of living if they want the district court to consider the expenses during the marriage that differ from the expenses at the time of trial. See Clarke v. Clarke, 2023 UT App 160, ¶ 62 (“If a party offers into evidence only time-of-trial expense amounts, and does not provide the court with any evidence of pre-separation expenses (to the extent they are different), that party has no right to complain when the court awards the time-of-trial amounts.”). And it is important that they provide such evidence, because step one—where the district court determines the parties’ reasonable expenses—is the place for taking the marital standard of living into account in the alimony calculation.

¶13      In step three, the district court then combined Jacqueline’s demonstrated need of $910.06 and David’s excess income of $3,040.10, “equalize[d] the combined disparity of $3,950.16,” and gave Jacqueline an alimony award of half that amount, $1,975. Daniel contends the district court should have capped the alimony award at the $910.06 monthly shortfall the district court calculated as the difference between Jacqueline’s income and her expenses. We agree with Daniel. “Regardless of the payor spouse’s ability to pay more, the recipient spouse’s demonstrated need must constitute the maximum permissible alimony award.” Roberts v. Roberts, 2014 UT App 211, ¶ 14, 335 P.3d 378 (cleaned up); Rule, 2017 UT App 137, ¶ 17 (“The receiving spouse’s needs ultimately set the bounds for the maximum permissible alimony award.”); Barrani v. Barrani, 2014 UT App 204, ¶ 30, 334 P.3d 994 (“An alimony award in excess of the recipient’s need is a basis for remand even when the payor spouse has the ability to pay.”); Bingham v. Bingham, 872 P.2d 1065, 1068 (Utah Ct. App. 1994) (“[T]he spouse’s demonstrated need must . . . constitute the maximum permissible alimony award.”). Thus, the district court abused its discretion when it awarded Jacqueline alimony in an amount greater than her demonstrated need.

¶14 We also caution district courts that they “should not calculate alimony by simply dividing the couple’s pre-separation expenses in half,” Clarke, 2023 UT App 160, ¶ 57, or by “presumptively award[ing]” half of the “total money the parties spent each month during the marriage,” Fox, 2022 UT App 88, ¶ 25. In other words, the proper way to take the marital standard of living into account is at step one “by assessing a party’s claimed line-item expenses in light of that standard.” Clarke, 2023 UT App 160, ¶ 59.

¶15      Here, the district court abused its discretion at step three when it took the parties’ “combined disparity of $3,950.16” per month and awarded half of that amount to Jacqueline. Regardless of how much income the payor spouse may have, the purpose of alimony is to meet the demonstrated need of the recipient spouse, not to redistribute all the income between the spouses. See Roberts, 2014 UT App 211, ¶ 14 (“[T]he core function of alimony is therefore economic—it should not operate as a penalty against the payor nor a reward to the recipient.”). And although “we accord trial courts broad discretion in dividing the shortfall and apportioning that burden” in the third step, such discretion is premised on the assumption the court “has properly determined that a shortfall exists between the parties’ resources and needs.” Rule, 2017 UT App 137, ¶ 21.

¶16 Sequence matters. See id. ¶ 22 (“Once the court has determined that there are insufficient resources to meet the baseline needs established by the marital living standard, the court should then equitably allocate the burden of the shortfall between the parties.” (emphases added)); see also Bakanowski v. Bakanowski, 2003 UT App 357, ¶ 12, 80 P.3d 153 (holding that “attempting to equalize the parties’ income rather than going through the traditional needs analysis” constitutes an abuse of discretion). Just as it is an abuse of discretion to “skip[] over the traditional needs analysis and move[] directly to address what it perceives to be insufficient resources,” see Rule, 2017 UT App 137, ¶ 23, it was an abuse of discretion here when the district court used the marital standard of living at step three to increase the amount of the alimony award beyond the demonstrated need.

¶17      As a final note, we reiterate that it is proper for a district court to consider the marital standard of living during step one of the alimony analysis, so long as the parties have presented such evidence. We would normally vacate the alimony award and remand the matter to the district court “for the court to reassess its alimony determinations in light of the marital standard of living.” Id. ¶ 32. But here, neither party presented evidence of their expenses during the marriage. Indeed, they both left the “marital expenses” column on their financial declarations blank. As a result, there is no evidence in the record from which the district court can make findings that Jacqueline’s expenses were different from what she listed. Thus, the district court’s finding that her demonstrated need was $910.06 limits “the maximum permissible alimony award” to that amount. See Wellman v. Kawasaki, 2023 UT App 11, ¶ 12, 525 P.3d 139.


¶18      The district court abused its discretion when it employed the incorrect analysis in computing Jacqueline’s alimony award. The court did not follow the three-step process required by Utah law. Accordingly, we vacate and remand the case to the district court for entry of an alimony award of $910.06 per month.

Utah Family Law, LC | | 801-466-9277

[1] Because the parties share the same last name, we refer to them by their first names for clarity, with no disrespect intended.

[2] Daniel also challenges the district court’s denial of his motion to amend the findings. But we need not reach this issue because we conclude the district court did not follow “the standards we have set” in its alimony calculation, see Knight v. Knight, 2023 UT App 86, ¶ 17, 538 P.3d 601 (cleaned up), and we remand the case on that basis.

[3] “The marital standard of living is that which the parties shared, and courts consider the parties as a single unit when evaluating that standard.” Knight, 2023 UT App 86, ¶ 32. In terms of alimony, “the marital standard of living analysis is about whether the parties’ proposed points of calculation are consistent with the parties’ manner of living and financial decisions.” Id. (cleaned up).

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