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Category: Cohabitation

How much does a parent have to pay in child support? What is the legally set amount?

Some people believe that child support is the same for all parents. They believe that every parent who is ordered to pay child support pays the same amount of money per child. This is not how child support is calculated in most jurisdictions, and Utah is no exception.

Child support is based upon several factors before it is calculated and ordered:

  • the incomes of both parents;
  • the number of children there are; and
  • the number of overnights that each parent spends with the child or children on an annual basis

Some other factors can affect child support calculations, such as whether a child has special needs, but generally, child support is a factor of parent income and the number of overnights the children spend with each parent. Allow me to explain with this hypothetical example:

John and Jane are the parents of three minor children.

John’s gross monthly income (we use gross monthly income as the income figures for calculating the monthly base child support obligation) is $5,400 per month, and Jane’s monthly gross income is $2,600 per month.

To calculate child support in various custody situations, we are going to utilize the Utah State Office of Recovery Services Child Support Calculator.

If the children spend an equal number of overnights with both parents on an annual basis, then child support looks like this because it is calculated this way under Utah Code § 30-3-35.2[1]:

(2)

(d) Child support for the equal parent-time schedule shall be consistent with Section 78B-12-208.

(e)

(i) A court shall determine which parent receives 182 overnights and which parent receives 183 overnights for parent-time.

(ii) For the purpose of calculating child support under Section 78B-12-208, the amount of time to be spent with the parent who has the lower gross monthly income is considered 183 overnights, regardless of whether the parent receives 182 overnights or 183 overnights under Subsection (2)(e)(i).

Joint Custody P1 – 183 P2 – 182
Joint Custody P1 – 182 P2 – 183

If one parent has the children in his or her custody more or less than on an equal time basis, the calculation looks something like this:

  • I will show what a calculation based upon an unequal physical custody award looks like by calculating child support based upon John spending less than 111 overnights with his children annually)
  • In such a situation, we will treat John as the “noncustodial” parent. “Noncustodial parent” does not mean that John has lost all of his parental rights, but just that he does not have primary physical custody of the children (i.e., that the children are in his care and custody less than 111 overnights annually). Based upon John’s spending less than 111 overnights with the children, the Child Support worksheet would look like this, and would result in John’s child support obligation being as follows:
Sole Custody

And there is yet another way to calculate child support in a “split custody” situation. That’s a situation where, when there are multiple children, some live primarily with one parent and some live primarily with the other (in other words, they don’t spend time all together with one parent at a time).

So, let’s assume in this scenario that two of the children live with John as the custodial parent, and one of the children lives with Jane has the custodial parent of that one child. This is how the child support calculation worksheet would look and what the resulting child support obligations from each parent to the other would be:

Split Custody

As you can see, on a split custody basis, even though each parent has custody of one or more children, it ultimately comes down to one parent’s obligation being offset by what the other parent’s obligation is. This is why John pays $13 to Jane each month, even though Jane’s obligation to John is $355.94 per month because his obligation to Jane is $369.08 per month.

So John’s obligation to Jane of $369.08 per month is reduced by Jane’s $355.94 monthly obligation to John, resulting in a difference of $13.

 

Now, the examples I provided above are not the only ways child custody can be awarded and thus not the only ways that child support can be calculated and awarded, but these examples are the most common that you’ll see. So, now you get an idea of what happens and what the child support calculations and obligations are in these situations.

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


[1] This is not truly an equal custody award because one parent is awarded 183 overnights with the children annually. It does not have to be this way, and indeed, I submit it should not be this way. If you are a parent who wants a true equal custody award made, then calculate custody and child support this way:

  • Agree that each parent is awarded 182.5 overnights with the children annually and note that this will result in one parent naturally having the children in his/her care and custody 183 overnights in one year, then 182 overnights in the next year due to the fact that a year consists of (with the exception of leap years, which occur so rarely as to be statistically insignificant) an odd number of days, i.e., 365.
  • Calculate what child support would be for the obligor parent (“obligor” means the one who pays) if a parent had the children in his/her care and custody 183 overnights annually and 182 overnights annually, and then average those two child support obligations to get what the child support obligation is on a 182.5 overnights annually basis.
  • So, in John and Jane Doe’s hypothetical case, that would mean that John’s monthly base child support payment obligation on a 182.5 perfectly equal custody basis would be $287 per month ($272 + #302 = $574. $574 ÷ 2 = $287).
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House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”

Today’s post on proposed family law legislation under consideration during the 2024 Utah legislative session is House Bill 140 (HB0140 (utah.gov)), “Amendments to Custody and Parent-Time”.

This bill, according to its own description:

  • provides that a substantial and material change in circumstances for a custody order includes a parent residing with an individual, or providing the individual with access to the parent’s child, when the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement to allow for parental notification when a parent is residing with an individual, or providing the individual with access to the parent’s child, and the individual has been convicted of certain crimes;
  • amends the advisory guidelines for a custody and parent-time arrangement in regard to notification of a parent in the event of a medical emergency; and
  • makes technical and conforming changes.

It would amend the following code sections, if passed into law:

Utah Code § 30-3-10.4

Utah Code § 30-3-33

My thoughts on this bill:

If this bill passed, what effect would it have? A parent discovers that the person he/she resides with or to whom the parent has “provide access to his/her child(ren)” meets one or more of the child abuse/child sexual abuse factors and has to notify the other parent of this fact? So what? Unless the person is barred from contact with children, then unless that person has abused, attempted to abuse, or threatened to abuse the child(ren), what can legally be done? A child being in the presence of a child abuse ex-con is not itself a “substantial and material change of circumstances” justifying a modification of child custody or parent-time, in my view. We can’t keep punishing someone repeatedly for the same crime.

And the definition of “sex offender” gets broader all the time. You can get on the sex offender list for the silliest of things (I know a guy who went streaking in college and is on the sex offender list—it was stupid of him to go streaking, but a little kid saw him from a neighboring window and that’s what got him on the sex offender list).

Yes, living with a child abuse ex-con or providing a child abuse ex-con “access to the child(ren)” is poor judgment, but without the children being harmed or in danger of being harmed, there’s not enough to go on to do anything.

But I get it. If I were a divorced or single parent, I wouldn’t want the other parent living with a convicted sex offender either (assuming the offense was a serious one, and not one of those “he/she is on the sex offender list for public urination” kind of convictions).

It’s not a matter of how I feel about sex offenders (real sex offenses are vile), it’s whether the proposed law would do any good. I don’t think it would. Especially not in the legal system we have now. What good one perceives such a law would do and what it would actually do are quite different, in my view.

I don’t know a great deal about the sex offender registry law and other post-conviction laws. Are convicted sex offenders required to notify prospective boyfriends/girlfriends or spouses that they are convicted sex offenders currently? It is my understanding that they do not. If they do, then H.B. 140 may have stronger rational footing than I believe. If not, then the bill doesn’t appear to make much legal sense to me (meaning: I don’t see what good it will actually do, no matter how good it may feel to propose such a law).

Even if the law were passed, it would not likely be the basis for a modification of a child custody or parent-time order. Living with someone who is a convicted sex offender alone is simply not proof of any harm or sufficient danger to a child (just as living with one convicted of a violent crime, drug use, drug dealing, or other crimes is not). I don’t know the real statistics about the rate of recidivism for sex offenders, but even if we assume for the sake of discussion that it’s very high, that alone would not, in my view, likely be seen by a court as a reason to change custody. Like it or not.

If a parent resided with a sex offender with a history of repeated offenses, that might qualify as too great a risk to a child, but if we’re talking one conviction (maybe even two, sadly), that may not be enough to establish the sex offender as a danger to the children. My opinion is not based upon sympathy for sex offenders but on what I believe the courts would do in the situation you describe. This is why you’ll notice that there has not been a bill proposed that prevents a single parent or divorced parent from marrying or living with a convicted sex offender. I believe it would be found unconstitutional, that it would be found to unduly punish those who don’t re-offend.

Besides, how would one ever prove that a parent who resides with a convicted sex offender or provides him/her with access to that parent’s knows that the individual is a sex offender or worse, “an offense that is substantially similar to” a sex offense (see lines 57 and 58 of the bill, emphasis mine).

No matter how good the intent behind H.B. 140 may be, I foresee far too many adverse unintended consequences and abuses of such a law.

AMENDMENTS TO CUSTODY AND PARENT-TIME

33     Be it enacted by the Legislature of the state of Utah:
34          Section 1. Section 30-3-10.4 is amended to read:
35          30-3-10.4. Modification or termination of order.
36          (1) The court has continuing jurisdiction to make subsequent changes to modify:
37          (a) custody of a child if there is a showing of a substantial and material change in
38     circumstances since the entry of the order; and
39          (b) parent-time for a child if there is a showing that there is a change in circumstances
40     since the entry of the order.
41          (2) A substantial and material change in circumstances under Subsection (1)(a)
42     includes a showing by a parent that the other parent:
43          (a) resides with an individual or provides an individual with access to the child; and
44          (b) knows that the individual:
45          (i) is required to register as a sex offender or a kidnap offender for an offense against a
46     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
47          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
48     Abuse Offender Registry; or
49          (iii) has been convicted of:
50          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
51     or 76-5-208;
52          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
53          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
54     Part 3, Kidnapping, Trafficking, and Smuggling;
55          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
56     Exploitation Act; or

57          (E) an offense that is substantially similar to an offense under Subsections
58     (2)(b)(iii)(A) through (D).
59          [(1)(3) On the petition of one or both of the parents, or the joint legal or physical
60     custodians if they are not the parents, the court may, after a hearing, modify or terminate an
61     order that established joint legal custody or joint physical custody if:
62          (a) the verified petition or accompanying affidavit initially alleges that admissible
63     evidence will show that the circumstances of the child or one or both parents or joint legal or
64     physical custodians have materially and substantially changed since the entry of the order to be
65     modified;
66          (b) a modification of the terms and conditions of the order would be an improvement
67     for and in the best interest of the child; and
68          (c) (i) both parents have complied in good faith with the dispute resolution procedure
69     in accordance with Subsection 30-3-10.3(7); or
70          (ii) if no dispute resolution procedure is contained in the order that established joint
71     legal custody or joint physical custody, the court orders the parents to participate in a dispute
72     resolution procedure in accordance with Subsection 30-3-10.2(5) unless the parents certify that,
73     in good faith, they have used a dispute resolution procedure to resolve their dispute.
74          [(2)(4) (a) In determining whether the best interest of a child will be served by either
75     modifying or terminating the joint legal custody or joint physical custody order, the court shall,
76     in addition to other factors the court considers relevant, consider the factors outlined in Section
77     30-3-10 and Subsection 30-3-10.2(2).
78          (b) A court order modifying or terminating an existing joint legal custody or joint
79     physical custody order shall contain written findings that:
80          (i) a material and substantial change of circumstance has occurred; and
81          (ii) a modification of the terms and conditions of the order would be an improvement
82     for and in the best interest of the child.
83          (c) The court shall give substantial weight to the existing joint legal custody or joint
84     physical custody order when the child is thriving, happy, and well-adjusted.
85          [(3)(5) The court shall, in every case regarding a petition for termination of a joint
86     legal custody or joint physical custody order, consider reasonable alternatives to preserve the
87     existing order in accordance with Subsection 30-3-10(3). The court may modify the terms and

88     conditions of the existing order in accordance with Subsection 30-3-10(8) and may order the
89     parents to file a parenting plan in accordance with this chapter.
90          [(4)(6) A parent requesting a modification from sole custody to joint legal custody or
91     joint physical custody or both, or any other type of shared parenting arrangement, shall file and
92     serve a proposed parenting plan with the petition to modify in accordance with Section
93     30-3-10.8.
94          [(5)(7) If the court finds that an action under this section is filed or answered
95     frivolously and in a manner designed to harass the other party, the court shall assess attorney
96     fees as costs against the offending party.
97          [(6)(8) If an issue before the court involves custodial responsibility in the event of
98     deployment of one or both parents who are service members, and the service member has not
99     yet been notified of deployment, the court shall resolve the issue based on the standards in
100     Sections 78B-20-306 through 78B-20-309.
101          Section 2. Section 30-3-33 is amended to read:
102          30-3-33. Advisory guidelines for a custody and parent-time arrangement.
103          (1) In addition to the parent-time schedules provided in Sections 30-3-35 and
104     30-3-35.5, the following advisory guidelines are suggested to govern [all parent-time
105     arrangementsa custody and parent-time arrangement between parents.
106          [(1)(2) [Parent-time schedulesA parent-time schedule mutually agreed upon by both
107     parents [areis preferable to a court-imposed solution.
108          [(2)(3) [TheA parent-time schedule shall be used to maximize the continuity and
109     stability of the child’s life.
110          [(3)(4) [Special consideration shall be given by each parentEach parent shall give
111     special consideration to make the child available to attend family functions including funerals,
112     weddings, family reunions, religious holidays, important ceremonies, and other significant
113     events in the life of the child or in the life of either parent which may inadvertently conflict
114     with the parent-time schedule.
115          [(4)(5) (a) The court shall determine the responsibility for the pick up, delivery, and
116     return of the child [shall be determined by the court] when the parent-time order is entered[,
117     and may be changed].
118          (b) The court may change the responsibility described in Subsection (5)(a) at any time

119     a subsequent modification is made to the parent-time order.
120          [(5)(c) If the noncustodial parent will be providing transportation, the custodial parent
121     shall:
122          (i) have the child ready for parent-time at the time the child is to be picked up [and
123     shall]; and
124          (ii) be present at the custodial home or [shall] make reasonable alternate arrangements
125     to receive the child at the time the child is returned.
126          [(6)(d) If the custodial parent will be transporting the child, the noncustodial parent
127     shall:
128          (i) be at the appointed place at the time the noncustodial parent is to receive the child[,
129     and]; and
130          (ii) have the child ready to be picked up at the appointed time and place[,] or have
131     made reasonable alternate arrangements for the custodial parent to pick up the child.
132          [(7)(6) [RegularA parent may not interrupt regular school hours [may not be
133     interrupted] for a school-age child for the exercise of parent-time [by either parent].
134          [(8)(7) The court may:
135          (a) make alterations in the parent-time schedule to reasonably accommodate the work
136     schedule of both parents [and may]; and
137          (b) increase the parent-time allowed to the noncustodial parent but may not diminish
138     the standardized parent-time provided in Sections 30-3-35 and 30-3-35.5.
139          [(9)(8) The court may make alterations in the parent-time schedule to reasonably
140     accommodate the distance between the parties and the expense of exercising parent-time.
141          [(10)(9) [Neither parent-time nor child support is to be withheld due to eitherA
142     parent may not withhold parent-time or child support due to the other parent’s failure to comply
143     with a court-ordered parent-time schedule.
144          [(11)(10) (a) The custodial parent shall notify the noncustodial parent within 24 hours
145     of receiving notice of all significant school, social, sports, and community functions in which
146     the child is participating or being honored[, and the].
147          (b) The noncustodial parent [shall beis entitled to attend and participate fully in the
148     functions described in Subsection (10)(a).
149          [(12)(c) The noncustodial parent shall have access directly to all school reports

150     including preschool and daycare reports and medical records [and shall be notified immediately
151     by the custodial parent].
152          (d) A parent shall immediately notify the other parent in the event of a medical
153     emergency.
154          [(13)(11) Each parent shall provide the other with the parent’s current address and
155     telephone number, email address, and other virtual parent-time access information within 24
156     hours of any change.
157          [(14)(12) (a) Each parent shall permit and encourage, during reasonable hours,
158     reasonable and uncensored communications with the child, in the form of mail privileges and
159     virtual parent-time if the equipment is reasonably available[, provided that if the parties].
160          (b) If the parents cannot agree on whether the equipment is reasonably available, the
161     court shall decide whether the equipment for virtual parent-time is reasonably available[,by
162     taking into consideration:
163          [(a)(i) the best interests of the child;
164          [(b)(ii) each parent’s ability to handle any additional expenses for virtual parent-time;
165     and
166          [(c)(iii) any other factors the court considers material.
167          [(15)(13) (a) Parental care [shall beis presumed to be better care for the child than
168     surrogate care [and the].
169          (b) The court shall encourage the parties to cooperate in allowing the noncustodial
170     parent, if willing and able to transport the children, to provide the child care.
171          (c) Child care arrangements existing during the marriage are preferred as are child care
172     arrangements with nominal or no charge.
173          [(16)(14) Each parent shall:
174          (a) provide all surrogate care providers with the name, current address, and telephone
175     number of the other parent [and shall]; and
176          (b) provide the noncustodial parent with the name, current address, and telephone
177     number of all surrogate care providers unless the court for good cause orders otherwise.
178          [(17)(15) (a) Each parent [shall beis entitled to an equal division of major religious
179     holidays celebrated by the parents[, and the].
180          (b) The parent who celebrates a religious holiday that the other parent does not

181     celebrate shall have the right to be together with the child on the religious holiday.
182          [(18)(16) If the child is on a different parent-time schedule than a sibling, based on
183     Sections 30-3-35 and 30-3-35.5, the parents should consider if an upward deviation for
184     parent-time with all the minor children so that parent-time is uniform between school aged and
185     nonschool aged children, is appropriate.
186          [(19)(17) (a) When one or both parents are servicemembers or contemplating joining
187     a uniformed service, the parents should resolve issues of custodial responsibility in the event of
188     deployment as soon as practicable through reaching a voluntary agreement pursuant to Section
189     78B-20-201 or through court order obtained pursuant to Section 30-3-10.
190          (b) [ServicemembersService members shall ensure their family care plan reflects
191     orders and agreements entered and filed pursuant to Title 78B, Chapter 20, Uniform Deployed
192     Parents Custody, Parent-time, and Visitation Act.
193          (18) A parent shall immediately notify the other parent if:
194          (a) the parent resides with an individual or provides an individual with access to the
195     child; and
196          (b) the parent knows that the individual:
197          (i) is required to register as a sex offender or a kidnap offender for an offense against a
198     child under Title 77, Chapter 41, Sex and Kidnap Offender Registry;
199          (ii) is required to register as a child abuse offender under Title 77, Chapter 43, Child
200     Abuse Offender Registry; or
201          (iii) has been convicted of:
202          (A) a child abuse offense under Section 76-5-10976-5-109.276-5-109.376-5-114,
203     or 76-5-208;
204          (B) a sexual offense against a child under Title 76, Chapter 5, Part 4, Sexual Offenses;
205          (C) an offense for kidnapping or human trafficking of a child under Title 76, Chapter 5,
206     Part 3, Kidnapping, Trafficking, and Smuggling;
207          (D) a sexual exploitation offense against a child under Title 76, Chapter 5b, Sexual
208     Exploitation Act; or
209          (E) an offense that is substantially similar to an offense under Subsections
210     (18)(b)(iii)(A) through (D).

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

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What Must the Juvenile Court Consider on a Petition to Terminate a Parent’s Parental Rights?

Before terminating a parent’s rights, the court must find that termination is “strictly necessary to promote the child’s best interest.” This analysis must be undertaken from the child’s point of view. Utah law provides that termination is strictly necessary only when, after exploring possible placements for the child, the juvenile court concludes that no other feasible options exist that could address the specific problems or issues facing the family, short of imposing the ultimate remedy of terminating the parent’s rights. If the child can be equally protected and benefited by an option other than termination (such as permanent custody and guardianship awarded to someone other than the parent or parents), termination is thus not strictly necessary. The strictly necessary analysis is designed to ensure that the court pause long enough to thoughtfully consider the range of available options that could promote the child’s welfare and best interest. If a court has complied with its statutory obligations, its resultant best interest determination is entitled to deference by an appellate court. Long-term guardianship arrangements are typically only in a child’s best interest where the guardians and the parent have a working, relatively healthy relationship in which they are both willing to work together to preserve the parent-child relationship and where the child has a healthy relationship with both the guardian and the parent. Thus, when a parent and potential guardian have little to no relationship, the particular circumstances of the case may indicate that permanent custody and guardianship will not meet the children’s needs as well as termination of parental rights. This post is a summary of the law as stated in the recent Utah Court of Appeals opinion in the case of  In re K.R. – 2023 UT App 75 (filed July 13, 2023).

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Why Don’t All Divorced Wives Get Half of Their Husbands’ Property?

Because divorce is not about a spouse (man or woman) getting “half of everything”.

Depending upon whether a state is a “community property” state or an “equitable distribution” state, here is how property is divided between spouses in a divorce:

A community-property state is state in which spouses hold property that is acquired during marriage (other than property acquired by one spouse by inheritance, devise, or gift) as community property. Otherwise stated, all property that is acquired during the marriage by either spouse (other than property acquired by one spouse by inheritance, devise, or gift) or by both spouses together is jointly and equally owned and will be presumed to be divided in divorce equally between the divorcing spouses. Nine states are community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

An equitable distribution state seeks to divide property in divorce in a fair, but not necessarily equal, manner. An equitable property state court can divide property between the spouses regardless of who holds title to the property. The courts consider many factors in awarding property, including (but not limited to) a spouse’s monetary contributions, nonmonetary assistance to a spouse’s career or earning potential, the efforts of each spouse during the marriage, the length of the marriage, whether the property was acquired before or after marriage, and whether the property acquired by one spouse by inheritance, devise, or gift. The court may take into account the relative earning capacity of the spouses and the fault of either spouse (See Black’s Law Dictionary, 11th ed.). Equitable distribution is applied in the non-community property states.

So, does a spouse “get half of everything” in divorce? Possibly, but not always, and now you know why.

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

Why don’t all divorced wives get half of their husbands’ property? – Husbands and wives – Quora

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How do you get pet custody after a breakup?

I cannot speak on what the law is in every jurisdiction, but according to Utah (Utah is where I practice divorce and family law), the answers are: 

If by “breakup” you mean the breakup of a marriage by divorce: 

Pets are property, and so they are treated like property, although because they are living creatures they are not treated as a coffee table or money in a bank account would be, obviously. 

And usually pets are not an asset but are more of a liability. In other words, while I can sell a used coffee table and while I can spend my half of the money I was awarded out of the joint marital bank account, owning and caring for a pet costs money. If one spouse is willing to take on the liability associated with caring for a pet and the other spouse is not, then who gets the dog or cat or iguana won’t be in dispute. 

But if both spouses love the dog and both of them want to keep the dog for himself/herself, then who is awarded this particular piece of property can lead to a vicious and expensive fight. We can’t split the dog in half, as we could with money in the bank. But we could award one spouse the dog and then compensate the other spouse with an award of other marital property equal to the value of the dog. That often happens. 

But what about the intangible factors of pet ownership? While I can go out and buy a replacement coffee table if my spouse gets in divorce the one we bought together, it’s not as easy simply to buy a replacement dog. People become emotionally attached to pets and certain kinds of pets (especially dogs, I hear), and that emotional bond is often unique to that animal. Just as losing a child is not “cured” simply by adopting a “new” one, the relationship one formed with a pet is sometimes impossible to replace like one would replace a lightbulb. 

Still, there is only so much a court can do when faced with who gets Fido. What options are there? 

If the court decides that one spouse must be awarded the sole ownership and control of the pet, then the court will usually award the pet to one spouse and award the other spouse marital property of equal value. 

If the court decides that the parties to the divorce will “share custody” of the pet as if it were a child who spends time in the custody of both parents, the court can do that too. The court could order that Fido spends a week with ex-wife, then a week with ex-husband (or impose some other schedule). 

If by “breakup” you mean the breakup of a cohabitant (unmarried) relationship: 

If two people cohabit (that means “live together and have a sexual relationship without being married”), and if during that relationship: 

  • the couple both contribute money toward the purchase of a dog (or cat, or iguana, etc.) so that it’s a joint purchase and they are co-owners, and then the couple breaks up and they can’t agree who gets to keep the dog, then they could go to court to have the matter resolved. The judge could either order the dog sold and the proceeds of sale divided equally between the owners or award the dog to one of the parties and order that party pay the other half the value of the dog. 

OR 

  • one member of the couple buys a dog to which the other member of the couple becomes attached, and then the couple breaks up, the other member of the couple has no ownership rights in the pet. 

Had the couple been married when the pet was purchased—even if it was not a joint purchase—then because the couple was married when the property (i.e., the pet) was acquired, the pet is marital property. But when a couple is not married, if one member of the couple purchases something in his/her individual/separate capacity, then that person is the only owner. It’s not “joint” property. 

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

https://www.quora.com/How-do-you-get-pet-custody-after-a-breakup/answer/Eric-Johnson-311  

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T.W. v. S.A. – 2021 UT App 132 – child custody

2021 UT App 132 

THE UTAH COURT OF APPEALS 

T.W.,
Appellant,
v.
S.A.,
Appellee. 

Opinion 

No. 20200397-CA 

Filed November 26, 2021 

Third District Court, West Jordan Department 

The Honorable Dianna Gibson 

No. 134401457 

David Pedrazas, Attorney for Appellant
Laja K. M. Thompson, Attorney for Appellee 

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGE DAVID N. MORTENSEN and SENIOR JUDGE KATE APPLEBY concurred. [22]  

HAGEN, Judge: 

¶1 T. W. (Father) appeals the district court’s custody order awarding S. A. (Mother) primary physical custody of their son (Child). In so doing, the court rejected the custody evaluator’s recommendation that Father be awarded primary physical custody. The court also scheduled parent-time in accordance with the minimum parent-time schedule in Utah Code section 30-3-35, as opposed to the optional increased parent-time schedule in section 30-3-35.1. Father argues each of these rulings was made in error. Because the court sufficiently supported the parent-time schedule it ordered as well as its rejection of the custody evaluator’s recommendation, we affirm. 

BACKGROUND [23]  

¶2 Father and Mother ended their relationship before Child’s birth. The following year, Father petitioned for custody. Father later moved to Grantsville, Utah to live with his now-wife and her children, along with Father’s other child from a prior relationship. Grantsville is approximately fifty miles from Sandy, Utah where Mother resides. 

¶3 Shortly after his move, Father requested a custody evaluation. The court-appointed custody evaluator initially recommended Mother be awarded primary physical custody, but at a trial on that issue, the parties stipulated to joint legal and physical custody, with each parent enjoying alternating weeks of equal parent-time. The stipulated terms were then set forth by the court in its parentage decree. At the time, the logistics of complying with an alternating week schedule were relatively easy because Child was not yet attending school. 

¶4 Around the time Child was to begin kindergarten, a dispute arose over whether Child would attend school near Mother’s home in Sandy or near Father’s home in Grantsville. Father moved for a temporary restraining order that would specify where Child would attend school. After a telephonic hearing, the court commissioner recommended that, for the time being, Child would attend school in Sandy pending an evidentiary hearing. 

¶5 Child had been attending school for several months when the evidentiary hearing was held in December. After conferring with counsel off the record, the court expressed “some concerns about the workability of [Child] residing in Grantsville and going to school in Sandy or residing in Sandy and going to . . . school in Grantsville.” The court reasoned that the alternating week schedule was unworkable, and the parties agreed that now that Child was in school “continuing the commute [was] not in [his] best interest.” The court ultimately found that “the commute from Sandy to Grantsville is approximately 50 miles and can take approximately 50 minutes, and sometimes more, in the morning” and, “[f]or various reasons, including road/weather conditions, [Child had] been late to or missed school.” Because the long commute was unworkable, the court recognized that the issue before it was “a much larger issue than just determining where [Child] goes to school”—it would require “a change in the parent-time arrangement” as well. To resolve both the parent-time arrangement and where Child would attend school in the future, the court set the matter for trial. 

¶6 Before trial, the custody evaluator submitted an updated report. The evaluator recommended that Father and Mother be awarded joint legal custody but that Child’s primary physical residence be with Father. The evaluator made this recommendation based on two considerations. First, he opined that Father was “in a more stable physical situation” than Mother because he owned his house and was “not likely to move,” whereas Mother “rent[ed] an apartment and ha[d] a history that raise[d] concern about her ability to maintain a consistent residence.” Second, he noted that Child had developed “positive and reciprocal relationship[s] with his [half-sibling and step-]siblings,” who resided with Father, and Child would “attend school with them as well as receive guidance and support from them academically, socially and emotionally.” 

¶7 During trial, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with an adjustment disorder caused by “a stressor in [his] life.” That letter further stated that Child was experiencing “significant impairment in social, occupational or other areas of functioning.” 

¶8 Mother testified about Child’s emotional and social challenges as well. She explained that Child’s school counselor had been helping him to make and keep friends and to learn “what’s acceptable social behavior” and “how to control [his] emotions in school.” Mother testified that although Child was “struggling with focus and attention in school” as well as “emotional outbursts,” he had “improved.” She recounted that Child “struggled with making friends in the beginning,” but was “finally making more” and by that time had friends at the school. Because Child “knows the school now” and “knows the people,” Mother did not “feel that [it would be] right” to “rip [him] away from [the progress he had made] and have him start all over in a new school.” Given that Child was “in therapy for adjustment disorder,” she believed that “[h]aving him switch schools would just exacerbate that [condition]. He again would have to adjust to a huge change in his life.” 

¶9 Mother also testified about her work schedule. She described how she had started her own business so her schedule would be “flexible” for Child, that she “make[s her] own schedule,” and that the reason she did this was “to be available to [Child] and his school needs and his extracurricular needs . . . so that [she could] revolve [her] work around [her] son.” Mother testified that she and Child have a regular daily routine with a set schedule for school, homework, extracurricular activities, playtime, and sleep when Child is residing at her home in Sandy. Mother asserted that requiring Child to commute to school from Grantsville “probably has at least something to do with [Child’s] activity in school,” that “he hates [the commute],” and that he is sometimes late to school because of “the weather” or “accidents on the freeways.” 

¶10 After considering the original evaluation, the updated evaluation, and the other evidence presented at trial, the court issued its custody order. It found that because of Child’s “current emotional and behavioral issues which [had] been diagnosed as an Adjustment Disorder with disturbance of conduct,” his “psychological and emotional” needs were the deciding factor and those needs would benefit from residing primarily with one parent. In support, the court found that Child “struggles in social settings” and has “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” Moreover, “the commute is hard on [Child]” as he was “tired in school,” had “been late on several occasions,” and had even “missed school” because of the long commute. 

¶11 Having decided that it was in Child’s best interest to reside primarily with one parent, the court ruled that it was in Child’s best interest for Mother to be the primary custodial parent because Mother’s testimony was “credible and persuasive” regarding the negative impact a change in school would have on Child. The court found changing schools would require Child to “start all over—start at a new school, make new friends and re-adjust,” negatively affecting the progress he had made establishing friends. Moreover, Mother had the ability to provide the “maximum amount of parent-time with the maximum amount of flexibility,” and Mother had “established routines in the morning, evening, and with regard to homework and playtime.” 

¶12 In keeping with its custody determination, the court also ruled that, “solely” because of “the 100-mile round-trip commute,” the parent-time schedule of “every other week for five days in a row, was not in [Child’s] best interest,” and that the parent-time schedule would be altered in accordance with Utah Code section 30-3-35—Utah’s minimum parent-time schedule. The court ruled that “on alternating weekends, [Father] shall have parent-time from the time [Child’s] school is regularly dismissed on Friday until Sunday at 7 p.m.” Additionally, Father was awarded a mid-week overnight during which Father “pick[s] up [Child] after school, and [Mother] pick[s] up [Child] the next morning.” The court explained, “The new parent-time schedule is in the best interest of [Child]” because “it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” 

¶13 After the court filed its custody order, Father filed a motion for new trial as well as a motion to amend the court’s findings. The court denied both motions. Father now appeals. 

ISSUES AND STANDARDS OF REVIEW 

¶14 Father challenges the district court’s custody order on two grounds. First, he alleges the court failed to articulate sufficient reasons for rejecting the custody evaluator’s recommendation to award him primary physical custody and that the court based its custody determination on an erroneous fact. Second, he alleges the court failed to make sufficient findings about why it did not award increased parent-time pursuant to Utah Code section 303-35.1. 

¶15 On appeal, we review the district court’s custody and parent-time determination for abuse of discretion. LeFevre v. Mackelprang, 2019 UT App 42, ¶ 17, 440 P.3d 874. This discretion is broad; indeed, as long as the court exercises it “within the confines of the legal standards we have set, and the facts and reasons for the decision are set forth fully in appropriate findings and conclusions, we will not disturb the resulting award.” Davis v. Davis, 749 P.2d 647, 648 (Utah 1988) (cleaned up). We review the court’s “underlying factual findings for clear error.” LeFevre, 2019 UT App 42, ¶ 17. “A finding is clearly erroneous only if the finding is without adequate evidentiary support or induced by an erroneous view of the law.” Id. (cleaned up). 

ANALYSIS 

  1. The Rejection of the Evaluator’s Recommendation

¶16 Father first challenges the district court’s decision to award primary physical custody to Mother. When determining custody, the court considers many statutorily defined factors, including “the parent’s demonstrated understanding of, responsiveness to, and ability to meet the developmental needs of the child, including the child’s . . . physical needs; . . . emotional needs; . . . [and] any other factor the court finds relevant.” Utah Code Ann. § 30-3-10(2) (LexisNexis 2019).24 But the factors the court considers are “not on equal footing.” See Hudema v. Carpenter, 1999 UT App 290, ¶ 26, 989 P.2d 491. “Generally, it is within the trial court’s discretion to determine, based on the facts before it and within the confines set by the appellate courts, where a particular factor falls within the spectrum of relative importance and to accord each factor its appropriate weight.” Id. 

¶17 Although the district court has broad discretion to make custody determinations, it “must set forth written findings of fact and conclusions of law which specify the reasons for its custody decision.” Tucker v. Tucker, 910 P.2d 1209, 1215 (Utah 1996). The findings “must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” K.P.S. v. E.J.P., 2018 UT App 5, ¶ 27, 414 P.3d 933 (cleaned up). The district court’s conclusions must demonstrate how the decree “follows logically from, and is supported by, the evidence,” Andrus v. Andrus, 2007 UT App 291, ¶ 17, 169 P.3d 754 (cleaned up), “link[ing] the evidence presented at trial to the child’s best interest and the ability of each parent to meet the child’s needs” whenever “custody is contested,” K.P.S., 2018 UT App 5, ¶ 27. 

¶18 Father contends that the court failed to “articulate sufficient reasons as to why it rejected [the custody evaluator’s] recommendation[]” that Child should primarily reside with Father. “[A] district court is not bound to accept a custody evaluator’s recommendation,” but if it rejects such a “recommendation, the court is expected to articulate some reason for” doing so. R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. 

¶19 Here, the court sufficiently supported its rejection of the custody evaluator’s recommendation. The custody evaluator recommended that the court award primary physical custody of Child to Father for two reasons: (1) Father was in “a more stable physical situation” and “not likely to move,” and (2) Child had a “positive and reciprocal relationship with his siblings and [would] be able to attend school with them as well as receive guidance and support from them academically, socially and emotionally.” The court found the evaluation “very helpful” but did “not agree with the ultimate recommendation.” 

¶20 The court based its rejection of the custody evaluator’s recommendation on several factors. First, the court disagreed that Mother’s rental apartment was less stable than Father’s living situation because both Mother and Father had relocated multiple times in the last few years and both testified that they intended to stay in their current homes. Second, although the court agreed that keeping the siblings together “would be beneficial” to Child, the court did not “give this factor quite the weight” that the custody evaluator did, because Child had never “lived exclusively with his siblings” and their relationship was not the same as a relationship “between siblings who have been reared together prior to the separation between the parents.” 

¶21 The court also detailed how physical custody with Mother would better serve Child’s “psychological and emotional needs.” It found that Mother had “established routines” with Child “in the morning, evening, and with regard to homework and playtime.” She “lived a one[-]child-centered life” and indeed had “built her life around her son”; whereas, Father’s attention was divided among several children. Mother also enjoyed “flexible” self-employment that allowed her to personally provide care for Child, whereas Father’s work schedule was “less flexible” and would require surrogate care. 

¶22 The court further determined that it was not in Child’s best interest to change schools, which would be required if Father were awarded primary physical custody. The court emphasized the need for “consistency” and “routine” for Child, as he was exhibiting signs of being “under stress,” “struggle[d] in social settings,” and had “behavioral issues,” “emotional outbursts,” and “difficulty making friends.” In light of these factors, the court determined that “making too many changes all at once” would not be in Child’s best interest. Most notably, the court found Mother’s “testimony credible and persuasive regarding the impact a change of school would have on [Child], given his current condition and the Adjustment Disorder diagnosis.” Because Child had made significant progress “adjusting” to his current school and establishing friendships, the court found that requiring Child to “start all over—start at a new school, make new friends and re-adjust”—would “impact the progress” he had made and would not be in his best interest. Consequently, granting Father primary physical custody, which in turn would require Child to transfer to a school in Grantsville, was not in Child’s best interest. 

¶23 Father contends that the court erred because it rejected the custody evaluator’s “recommendation solely based on [an] ‘Adjustment Disorder with disturbance of conduct’ diagnosis” even though “at no[] time was there any testimony as to how [the diagnosis] affected the Child, and/or how it related to the Child’s relationship with each parent.” But the court did not rest its decision solely on the fact that Child had been diagnosed with adjustment disorder. Instead, it considered evidence that the disorder was caused by stress, that it manifested as behavioral and social impairments, and that introducing a change such as transferring schools would exacerbate these problems. Specifically, Father introduced a letter from Child’s therapist explaining that Child had been diagnosed with adjustment disorder caused by “a stressor in [his] life” and that he experienced “significant impairment in social, occupational or other areas of functioning.” Mother also gave extensive testimony regarding Child’s struggles with “focus,” “emotional outbursts,” and “making friends,” and she detailed the improvements he had made in those areas. She further testified that, in light of Child’s adjustment disorder diagnosis, “having him switch schools would just exacerbate that” condition and undo the progress he had made because it would require him to “start all over.” 

¶24 In sum, the evidence presented at trial sufficiently supports the court’s ruling that Child’s best interests, i.e., his “psychological, physical, and emotional” needs, were best met by Mother being awarded primary physical custody, “outweigh[ing] the factors favoring” a custody award in favor of Father. And the court’s careful evaluation of that evidence certainly “articulate[s] some reason” for rejecting the custody evaluator’s recommendation. See R.B. v. L.B., 2014 UT App 270, ¶ 18, 339 P.3d 137. Thus, the court acted within its discretion in rejecting the custody evaluator’s recommendation and awarding Mother primary physical custody. 

  1. The Parent-Time Schedule under Utah Code Section 30-3-35

¶25 Father also contends that the district court erred because it did not adopt the optional increased parent time schedule set forth under Utah Code section 30-3-35.1 without making sufficient findings. We disagree. 

¶26 “[D]istrict courts are generally afforded broad discretion to establish parent-time.” Lay v. Lay, 2018 UT App 137, ¶ 16, 427 P.3d 1221 (cleaned up). When parents do not agree to a parent-time schedule, Utah Code section 30-3-35 prescribes a “default minimum amount” of “parent-time for the noncustodial parent,” unless “‘the court determines that Section 30-3-35.1 should apply’ or a parent can establish ‘that more or less parent-time should be awarded.’” Id. ¶¶ 5–6 (quoting Utah Code Ann. § 303-34(2) (LexisNexis Supp. 2017)); see also Utah Code Ann. § 30-335(2) (LexisNexis Supp. 2021)). Under that default minimum parent-time schedule, the noncustodial parent is entitled to time with the child on “one weekday evening and on alternating weekends, which include Friday and Saturday overnights.” Lay, 2018 UT App 137, ¶ 6. Thus, the noncustodial parent, at minimum, enjoys “two overnights in a typical two-week period.” LeFevre v. Mackelprang, 2019 UT App 42, ¶ 20, 440 P.3d 874. 

¶27 The court “may consider” an “optional parent-time schedule” set forth in Utah Code section 30-3-35.1(1)–(2), (6), which increases parent-time from two overnights to five overnights in every two-week period “by extending weekend overnights by one night, and affording one weeknight overnight each week.” See Id. ¶ 21; see also Utah Code Ann. § 30-3-35.1(6) (LexisNexis 2019). The court may adopt the optional parent-time schedule when either (a) “the parties agree” or (b) “the noncustodial parent can demonstrate the presence of at least four factual circumstances.” LeFevre, 2019 UT App 42, ¶ 22 (cleaned up); see also Utah Code Ann. § 30-3-35.1(2). 

¶28 But even if either of these two prerequisites is satisfied, the district court is not obligated to adopt the increased parent-time schedule.25 Under Utah Code section 30-3-35.1, the court “is authorized, but not required, to consider the optional increased parent-time schedule as described in the statute.” Lay, 2018 UT App 137, ¶ 13. The statute “provides legislatively established standards for the district court to apply in evaluating whether increased parent-time is warranted, and it eliminates the need for a district court to independently fashion an increased parent-time schedule by providing a detailed schedule for the court to modify or adopt.” Id. ¶ 16. But by providing “the district court with some guidance and tools for adopting increased parent-time schedules,” the legislature did not eliminate “the court’s discretion to apply those tools in the best interest of the child.” Id. To the contrary, the statutory language plainly indicates that the adoption of the increased schedule is permissive rather than mandatory. See id. 

29 Nonetheless, Father argues that once the court “considered” section 30-3-35.1, it was obligated to make findings articulating why it rejected the increased parent-time schedule suggested by the statute. In setting the parent-time schedule, the court largely adopted the minimum schedule set forth in section 30-3-35, except that it increased the weekday evening parent-time to a mid-week overnight. As a result, the only difference between the increased parent-time schedule under section 30-3-35.1 and the schedule actually ordered is an additional weekly Sunday overnight. Father contends that “the trial court should have addressed how it was in the best interest for [Child] to be returned home on Sunday as opposed to Monday morning for school.” 

¶30 But Father misunderstands the statutory scheme. When parents cannot agree to a parent-time schedule, section 30-3-35 provides a presumptive minimum, but the district court still retains discretion to award more time than the statute provides. See Utah Code Ann. § 30-3-34(1)–(2) (“[T]he court may . . . establish a parent-time schedule” but “the parent-time schedule as provided in Section[] 30-3-35 . . . shall be considered the minimum parent-time to which the noncustodial parent and the child shall be entitled.”). If the court orders more parent-time than the presumptive minimum, it may “independently fashion an increased parent-time schedule” under section 30-3-35, or it may adopt the “detailed schedule” set forth in section 30-3-35.1. See Lay, 2018 UT App 137, ¶ 16. In any event, in awarding parent-time, the court is simply required to “enter the reasons underlying [its] order.” See Utah Code Ann. § 30-3-34(3). The statute does not require the court to articulate specific reasons for rejecting all other alternatives, such as an additional Sunday overnight that would necessitate another long commute to school every other Monday. 

¶31 In keeping with the statutory requirements, the court entered sufficient findings to support its parent-time award under section 30-3-35. The court ordered that “[Father] shall have parent-time pursuant to the guidelines established in Utah Code Ann. § 30-3-35” and articulated its reasons for customizing that schedule to allow Father an additional mid-week overnight. The court explained that it was 

interested in maximizing [Father’s] time (along with his family) with [Child]. Section 30-3-35 permits a mid-week visit. It is in [Child’s] best interest to have a mid-week visit at [Father’s] home. [Child] will benefit from doing homework with [Father], [his stepmother,] and his siblings. And, because it is only one day a week, the impact of the commute will be minimized. The parties can determine which day works best for them and [Child]. 

The court concluded that “[t]he new parent-time schedule is in the best interest of [Child]—it allows [him] to maximize his time with [Father] while eliminating the constant, back-to-back days of commuting.” These findings adequately support the ordered parent-time schedule. 

CONCLUSION 

¶32 Custody and parent-time determinations “may frequently and of necessity require a choice between good and better.” Hogge v. Hogge, 649 P.2d 51, 55 (Utah 1982). The broad discretion we accord the district court “stems from the reality that in some cases the court must choose one custodian from two excellent parents.” Tucker v. Tucker, 910 P.2d 1209, 1214 (Utah 1996). That is precisely the situation the district court faced here. And “where analysis reveals that the best interests of the child would be served equally well with either parent,” we cannot say the “court has abused its discretion in awarding custody to one parent over another.” See id. at 1216. Because the district court sufficiently supported its rejection of the custody evaluator’s recommendation for primary custody and articulated the reasons for the parent-time schedule it adopted, we defer to the court’s sound judgment. Affirmed. 

Click to access T.W.%20v.%20S.A.20211126_20200397_132.pdf

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MacFarland v. MacFarland – 2021 UT App 58

021 UT App 58 

THE UTAH COURT OF APPEALS 

BRUCE RAY MCFARLAND, Appellant and Cross-appellee, 
v. 
NICOLE S. MCFARLAND, Appellee and Cross-appellant. 

Opinion 

No. 20190541-CA 
Filed June 4, 2021 

Second District Court, Farmington Department 

The Honorable David J. Williams 

No. 084701533 

Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee 

Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant 

JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred. 

HARRIS, Judge: 

¶1 Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings. 

BACKGROUND 
The Divorce Decree 

¶2 In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments. 

¶3 But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.” 

¶4 With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2  

Post-Divorce Events and Conduct 

¶5 Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind. 

¶6 In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”). 

¶7 In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried. 

¶8 For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other. 

The Post-Divorce Filings 

¶9 The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization. 

¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects: 

(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home. 

¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify. 

¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.” 

¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify. 

The Hearing and Subsequent Ruling 

¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs. 

¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann§ 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction. 

¶16 A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount. 

¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole. 

¶18 With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing. 

ISSUES AND STANDARDS OF REVIEW 

¶19  Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified). 

¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4 

ANALYSIS 
I. Alimony 

¶21 We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling. 

¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)). 

¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7 

  1. Child Support

¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s. 

A 

¶25 In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”). 

¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party. 

¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows: 

 Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child. 

 Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child. 

Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time. 

¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11. 

¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2). 

B 

¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.) 

¶31 Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter). 

1 

¶32 In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added). 

¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event, 

child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient. 

Id. 

¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id. 

¶35 Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017. 

2 

¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custodySee Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily definedSee id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time). 

¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequentialSee Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangementSee Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement. 

¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term. 

¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes. 

3 

¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows: 

Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole]. 

¶41 We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”). 

¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4). 

¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g.Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case. 

¶44 Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments. 

C 

¶45 Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions. 

CONCLUSION 

¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders. 

¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify. 

 

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

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Does cohabitation before marriage affect how long alimony is awarded?

Does cohabitation before marriage affect how long alimony is awarded?

How can cohabitation and marriage be calculated to determine the terms of a divorce judgment?

Great question.

How long can alimony be awarded?

In Utah, where I practice divorce and family law, alimony cannot (except in rare extenuating circumstances) “[a]limony may not be ordered for a duration longer than the number of years that the marriage existed” (Utah Code § 30–3–5(8)(j)).

Can alimony take into account any period of time we cohabited before marriage?

No. If, for example, you cohabited without being married for 5 years, then married and divorced after being married for, say, 4 years, the period of time for which alimony could be paid is 4 years, not 9, even though you cohabited for 9 years (five years before your marriage ceremony, then 4 years after your marriage ceremony).

The duration of alimony in Utah can only be, with rare exception, no longer than the number of years of marriage. This does not mean that alimony “shall be” equal to the length of the marriage, only that alimony can be awarded for a period equal to the length of the marriage, but it can also be (and usually is) awarded for a period less than the length of the marriage.

But what if you could claim that you entered into a common law marriage when you cohabited and then you later participated in a solemnized marriage ceremony?

Would a previously existing common law marriage mean that the subsequent solemnized marriage ceremony “revoked” the previous common law marriage? Would that mean that your “marriage clock” started over upon entering into the solemnized marriage? Or would the solemnized marriage have no effect on the existence of the common law marriage? It’s a very interesting question, and one that I’m not sure Utah case law has yet addressed or resolved.

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

https://www.quora.com/How-can-cohabitation-and-marriage-be-calculated-to-determine-the-terms-of-a-divorce-judgement/answer/Eric-Johnson-311

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Morality Clause: Can Include One in My Decree of Divorce?

Can I successfully put a morality clause in a custody agreement to prevent my child from a living arrangement where my ex is living with a girlfriend? This practice is against the religious teachings in our faith.

Yes.

In Utah (where I practice divorce and family law), you can include provisions in your decree to set and enforce certain moral standards.

In fact, it’s a common provision divorcing parents include in their divorce decrees. Sadly, such provisions are becoming less common as society’s acceptance of cohabiting grows, but it’s still a common issue and so “morality clauses,” as they are sometimes known, are still a common provision in divorce decrees.

If you and your spouse agree to a morality clause, the judge will almost surely accept it and permit its inclusion in your decree.

If the issue of including a morality clause in the decree were contested and left to the judge to decide, your chances of the judge including a morality clause in the decree would be slimmer, but not zero (some judges feel—for many reasons, some good, most bad—that morality clauses are a bad idea).

In crafting the terms of the morality clause take care to avoid overreaching. What do I mean? You asked whether you could include a morality clause that would prohibit your ex-husband from merely living with his girlfriend. That is the sort of clause the court would probably deny as too restrictive because if ex-husband (or ex-wife) were to cohabit with someone to who he is not married, some judges conclude that that doesn’t set a “bad enough” example to warrant barring cohabitation (I disagree, but it doesn’t matter what I think—you’re asking what the courts actually do, not what they should do).

So what you’re likely to get would be a morality clause that contains provisions like these:

A parent may not allow anyone 1) of the opposite sex, 2) who is not related to that parent by blood, 3) with whom that parent is involved in a romantic relationship, and 4) to whom that parent is not married, to stay with that parent overnight when any of the party’s minor children are in that parent’s care.

If the ex-spouse not heterosexual, the morality clause will need to account for that:

A parent may not allow 1) anyone who is not related to that parent by blood, 2) with whom that parent is involved in a romantic relationship, 3) and to whom that parent is not married, to stay with that parent overnight when any of the party’s minor children are in that parent’s care.

There is no perfect way to craft a morality clause*, but those I’ve provided above are good examples.

But bear in mind that merely having a morality clause in your decree is no guarantee that morality will rule and reign.

Morality clauses are extremely difficult to enforce because it is extremely difficult to prove that a parent is violating it.

Even if the kids report morality clause violations, the court usually requires more than Mom or Dad coming to court and saying, “Your Honor, the kids tell me. . .” This is because A) telling the courts what the kids allegedly told you is hearsay and generally not admissible evidence; B) little kids caught in the middle of their parents’ divorce aren’t the most credible of witnesses, as they are easily coached, coerced, and bribed to say anything; and C) generally don’t like to involve kids in divorce litigation.

*In one case in which I was involved the ex-husband claimed that the woman with whom he spent overnights when the kids were with him was “in a committed relationship with” him and thus not “unrelated” to him—fortunately, the court did not buy that argument. Other parents try to argue that the morality clause is not violated if the parent and his/her lover are in one room or tent or dwelling and the kids are in a separate room or tent or dwelling during the time the children are in that parent’s custody and care.

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

https://www.quora.com/Can-I-successfully-put-a-morality-clause-in-a-custody-agreement-to-prevent-my-child-from-a-living-arrangement-where-my-ex-is-living-with-a-girlfriend-This-practice-is-against-the-religious-teachings-in-our-faith/answer/Eric-Johnson-311

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Scott v. Scott – 2017 UT 66 – Utah Supreme Court – September 21, 2017 – termination of alimony for cohabitation

This opinion is subject to revision before final publication in the Pacific Reporter

2017 UT 66

IN THE SUPREME COURT OF THE STATE OF UTAH

JILLIAN SCOTT, Petitioner,

v.

BRADLEY SCOTT, Respondent.

No. 20160299

Filed September 21, 2017

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake

The Honorable Judge Robert P. Faust

No. 124903563

Attorneys:

Michael D. Zimmerman, Bart J. Johnsen, Troy L. Booher,  Julie J. Nelson, Salt Lake City, for petitioner

Karra J. Porter, Kristen C. Kiburtz, Salt Lake City, for respondent

JUSTICE PEARCE authored the opinion of the Court in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, JUSTICE DURHAM and JUDGE BROWN joined.

Having been recused, JUSTICE HIMONAS does not participate herein; DISTRICT COURT JUDGE JENNIFER A. BROWN sat.

JUSTICE PEARCE, opinion of the Court:

INTRODUCTION

¶1 Jillian Scott petitions this court to overturn the Utah Court of Appeals’ order affirming the district court’s conclusion that she cohabited with her now ex-boyfriend and, therefore, her alimony payments terminated under Utah Code section 30-3-5(10). This requires us to revisit a question that captured the nation’s attention in 1999 because the meaning of section 30-3-5(10) “depends upon what the meaning of the word ‘is’ is.” We conclude that the legislature intended that is should mean is and not was or has been.

We reverse.

BACKGROUND

¶2 Jillian Scott (Wife) and Bradley Scott (Husband) divorced in 2006. Under the terms of their divorce settlement and decree, Wife would collect $6,000 a month in alimony from Husband for the number of years they had been married: twenty-five. The divorce decree provided, “Alimony shall terminate upon the remarriage or cohabitation of [Wife].”

¶3 In October 2011, Husband moved to terminate alimony, claiming that Wife had cohabited with J.O., her ex-boyfriend. Husband argued that Wife had begun “cohabit[ing] with an adult male . . . on or about February 2011,” that Wife had a relationship with her cohabitant “akin to that generally existing between husband and wife,” and that she and cohabitant “shared a common residence for a significant period of time.” Wife and J.O. had broken up months before Husband filed his motion. The statutory language[1] governing termination of alimony provides that alimony “terminates upon establishment by the party paying alimony that the former

spouse is cohabitating with another person.” UTAH CODE § 30-3-5(10).[2]

[1] The court of appeals’ opinion correctly noted:

The parties’ decree of divorce differs from the language contained in Utah Code section 30-3-5(10). . . . However, the parties have presented this case as though the statutory language governs the result, and for purposes of this analysis we assume that the parties’ decree is substantively identical to the statute on the issue of cohabitation.

Scott v. Scott, 2016 UT App 31, ¶ 9 n.2, 368 P.3d 133, cert. granted, 379 P.3d 1183 (Utah 2016). On certiorari, neither party contends that the language of the decree controls or that under the decree this court should reach a different result. We thus limit our analysis to the parties’ arguments and do not consider the decree’s language.

[2] The Utah statute employs the verb cohabitate. See UTAH CODE § 30-3-5(10). We, however, use the more common term cohabit throughout this opinion when not quoting the statute. See Cohabit, GARNER’S MODERN AMERICAN USAGE (4th ed. 2016) (“Cohabitate is a misbegotten BACK-FORMATION that has never seriously competed with cohabit in print sources. . . . Current ratio (cohabiting vs. cohabitating): 8:1.”).

¶4 The district court found that Wife and J.O. had cohabited and that their cohabitation terminated Husband’s obligation to pay Wife alimony. The court stated that “[Wife] and [J.O.] lived their lives in multiple homes and had extensive and constant travel, which does not lend itself to a traditional analysis of a couple, who without those resources, cohabitate in a single home.” The court found it significant that Wife and J.O. had been “together or staying in one of [J.O]’s homes approximately 87% of the time from December 2010 onward.” Thus, considering the details of the couple’s intimate and exclusive 30–31-month relationship ending sometime before April 2011, the district court found that the evidence before it established “cohabitation and a relationship akin to a husband and wife.” The court ordered Wife to return to Husband “any alimony paid to her from December 22, 2010 to the present.”[3]

[3] We omit the details of Wife and J.O.’s time spent together at their various homes and vacation destinations, recounted at length in the court of appeals’ opinion, Scott, 2016 UT App 31.

¶5 Wife appealed and argued to the Utah Court of Appeals that the district court’s interpretation of the statute failed to account for the present tense of the to be verb “is” in the statute. See UTAH CODE § 30-3-5(10) (alimony should dissolve upon establishment that “the former spouse is cohabitating”). Under Wife’s reading, Husband could not establish that Wife is cohabiting, since she and J.O. had broken up months before Husband filed his motion. She argued that in order to terminate Husband’s obligation under the plain language of the statute, Husband had to show that she was cohabiting at the time he filed his motion to terminate alimony.

¶6 Husband contended to the court of appeals that Wife’s statutory interpretation argument was not preserved in the district court. The court of appeals responded, however, “that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision . . .” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133. It thus chose to reach Wife’s statutory interpretation argument “regardless of whether it was properly preserved.” Id.

¶7 The court of appeals disagreed with Wife’s plain language argument. The court explained that “[t]he language of the Cohabitation Provision has never been parsed in this way, and our case law has not squarely addressed the issue. Accordingly, we utilize applicable canons of construction to ascertain the meaning of the statute.” Id. ¶ 28. The court of appeals then reasoned that, under a plain language reading, “when the present-tense [to be] verb is read within the context of the [statute] as a whole, the argument that its use demands that cohabitation be ongoing at the time of determination seems less persuasive.” Id. ¶ 32 (internal citation omitted). It reasoned that to read the statute in a way that gives independent meaning to the word is would undermine the final effect the statute requires: that alimony “terminates upon establishment” of cohabitation. Id. (emphasis added); UTAH CODE § 30-3-5(10). The court of appeals determined that, because the statute lacks a provision allowing for “alimony reinstatement once cohabitation ends” or a provision explaining “that alimony is only suspended during cohabitation,” “the word ‘is’ cannot bear the burden of an interpretation that requires such a complex approach, and there is no other language in the statute to justify encumbering it with such a burden.” Scott, 2016 UT App 31, ¶ 32.

¶8 The court of appeals also reasoned that the legislature “could not have intended” the result Wife’s briefing described. Id. ¶ 33 (citation omitted). The court acknowledged “that requiring termination of alimony in [Wife’s] circumstances does not entirely align with the general economic policies underlying alimony.” Id. ¶ 35. “[C]ohabitation is qualitatively different from remarriage. Remarriage provides a legally binding substitute for alimony; cohabitation does not.” Id. But the court explained that

interpreting the [statute] to terminate alimony only during periods of active cohabitation could create an incentive for persons receiving alimony to simply cohabit rather than marry, so that if the new relationship does not endure, the alimony from the former spouse would resume. This could result in something of a statutory preference for cohabitation over marriage, which seems unlikely to have been the legislature’s intent.

Id. ¶ 33. Relying on its conclusion that Wife and J.O. had shared “a common abode” that was also their “principal domicile” for “more than a temporary or brief period of time,” the court rejected Wife’s argument and upheld the district court’s conclusion that Wife and J.O. had cohabited. Id. ¶¶ 16–26.

¶9 Although the court of appeals agreed that Wife and J.O. had cohabited, it disagreed with the district court’s timeframe. Id. ¶ 26. Instead of finding that Wife and J.O. began to cohabit on December 22, 2010, the court of appeals found that Wife and J.O. began to cohabit on February 17, 2011, “because their vacations together before they moved to [California] still retained a temporary quality.” Id. The court of appeals therefore remanded the case to the district court for the limited purpose of adjusting Wife’s payment to Husband to reflect the dates it found significant. Id. ¶ 38.

¶10 We disagree with the court of appeals’ reading of the cohabitation statute. We instead conclude that the plain language of Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.[4]

[4] Because we conclude that Husband did not establish that Wife cohabited within the meaning of the statute, we do not reach the merits of Wife’s other contentions arguing that the court of appeals erred in its application of the law.

We also clarify an appellee’s burden of persuasion on certiorari when the court of appeals addresses an issue that the appellee claims was unpreserved.

¶11 We have jurisdiction under Utah Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶12 On certioriari, we review decisions of the Utah Court of Appeals for correctness. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3. “We also review questions of statutory interpretation . . . for correctness.” Id.

ANALYSIS

I. The Court of Appeals Erred when It Found That Wife and J.O. Cohabited

¶13 Before we reach the merits of the court of appeals’ conclusion that Wife cohabited with J.O., we must address Husband’s argument that Wife failed to preserve the statutory construction issue. Husband argued to the court of appeals that it should not address the meaning of the statute because Wife had not presented that question to the district court. The court of appeals declined to resolve whether the issue had been preserved and instead addressed what it believed to be the proper construction of the statute. The court explained that, “[b]ecause we believe that resolution of the question of whether Wife and J.O. cohabited requires us to interpret the Cohabitation Provision, we address this argument regardless of whether it was properly preserved.” Scott v. Scott, 2016 UT App 31, ¶ 27 n.8, 368 P.3d 133.

¶14 The court of appeals appears to have believed that it was trekking down a path we marked in Patterson v. Patterson, 2011 UT 68, ¶ 20, 266 P.3d 828. In Patterson, we considered the application of a statute even though the parties had not preserved the issue before the district court. We recognized that “our decision to reach [the] argument may undermine some of the policies underlying the preservation requirement.” Id. ¶ 19. But we concluded that

consideration of the [statute] is necessary to a proper decision. As the state’s highest court, we have a responsibility to maintain a sound and uniform body of precedent and must apply the statutes duly enacted into law. Refusing to consider [appellant’s] statutory argument in this case would cause us to issue an opinion in contravention of a duly enacted controlling statute. This we will not do.

Id. ¶ 20. And the court of appeals believed that it was following this path when it reached the statutory interpretation question.

¶15 Our preservation requirement promotes a number of important policies. It encourages orderly proceedings by requiring a party to advise a trial court of potential errors so the trial court has the opportunity to correct them before they blossom into appellate issues. It also discourages a party from strategically ignoring errors in hopes of enhancing her chances of prevailing on appeal. Thus, we require a party to present an issue “in such a way that the [district] court has an opportunity to rule on [it].” Id. ¶ 12 (second alteration in original) (citation omitted). We “exercise wide discretion when deciding whether to entertain or reject matters that are first raised on appeal.” Id. ¶ 13. And we have used that discretion to carve out a few exceptions to the preservation requirement. For example, “we have reached matters not raised below under ‘exceptional circumstances’ or when ‘plain error’ has occurred.” Id. Stated differently, absent some exception, we do not normally address unpreserved issues.

¶16 This case does not present the normal situation. We are not asked to address an issue that a party is raising for the first time on appeal. Rather, we are asked to address an issue that the court of appeals determined it needed to resolve, even if it were unpreserved.

¶17 Husband all but ignores the court of appeals’ decision to reach the statutory construction issue. He asserts simply that “[Wife] failed to preserve this argument in the trial court. See Record, passim. Therefore it should not have been considered by the court of appeals.” In essence, Husband invites us to look past the court of appeals’ actual decision and affirm on the alternative ground that the court of appeals should not have touched the unpreserved issue in the first place.

¶18 We have the ability to affirm a decision on any ground apparent on the record. “[I]t is well established that an appellate court may affirm” a judgment “if it is sustainable on any legal ground or theory apparent on the record, even though such ground or theory differs from that stated by the trial court to be the basis of its ruling or action.” First Equity Fed., Inc. v. Phillips Dev., L.C., 2002 UT 56, ¶ 11, 52 P.3d 1137 (quoting Dipoma v. McPhie, 2001 UT 61, ¶ 18, 29 P.3d 1225). Thus, we could, in an appropriate case, affirm a court of appeals ruling where that court erroneously addressed an unpreserved issue.

¶19 That is not to say, however, that an appellee may simply flag the preservation problem and expect that we will exercise our discretion to ignore the court of appeals’ decision and affirm for a lack of preservation. Indeed, when the court of appeals decides to reach an unpreserved issue, and we hear a petition for certiorari in the matter, an appellee would be well advised to do more than just point out that the issue was unpreserved in the district court. Sometimes we may need to be convinced that the court of appeals erred in tackling the unpreserved issue and that the error is “apparent on the record.” This is especially important in a case like this where the court of appeals explained its rationale for reaching the arguably unpreserved issue. In this circumstance, the party may want to argue that the unpreserved issue did not implicate plain error, did not present any exceptional circumstance, or that it was not necessary for the court of appeals to address the issue to reach a proper conclusion. Husband did none of these.

¶20 Here, it is not apparent on the record that the court of appeals should not have reached the question of how the Cohabitation Provision should be interpreted. The court of appeals believed that even if the statutory argument was not preserved, it needed to construe the statute to properly resolve the matter. We can see arguments going both ways on whether this case presented the court of appeals with the same choice we were presented in Patterson. But in the absence of parties willing to develop those arguments, we are reluctant to wade in on our own. Simply stated, the decision to affirm on other grounds lies in this Court’s discretion and Husband has provided us little reason to exercise that discretion on the record before us.

¶21 As we previously stated, the resolution of this case turns on what the definition of is is. Utah Code section 30-3-5(10) provides that

alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.

(Emphasis added). Wife argues—both to us now and previously to the court of appeals—that the statute’s use of “is” requires that cohabitation be ongoing to terminate alimony under the plain language of the rule.[5]

[5] We note that the language of the divorce decree may point to a different result. See supra ¶ 3 n.1. That language provides that “[a]limony shall terminate upon the remarriage or cohabitation of [Wife].” We again note that, while the court of appeals drew this to the parties’ attention, see Scott, 2016 UT App 31, ¶ 9 n.2, neither party argues on certiorari that we should decide this case under the language of the divorce decree or that the decree’s language demands a different result.

She contends that the court of appeals erred when it interpreted is to mean was. The court of appeals understood Utah Code section 30-3-5(10) to permit a showing that the spouse collecting alimony was or had been cohabiting at some previous date, regardless of whether the spouse was actually cohabiting at the time of filing. Scott, 2016 UT App 31, ¶¶ 27–37. Employing a plain language analysis that considered the cohabitation provision both “as a whole” and “in harmony with” the other provisions of the statute, id. ¶ 28 (citation omitted), the court of appeals determined that Wife’s “present cohabitation” reading was erroneous regardless of the legislature’s “use of the present-tense ‘is,’” id. ¶¶ 32–33. First, the court believed the statute’s later use of the verb terminates “precludes an interpretation that alimony might then be reinstated should the cohabitation . . . end.” Id. ¶ 32. Next, it believed Wife’s interpretation “could lead to results that the legislature ‘could not have intended.’” Id. ¶ 33 (citation omitted). And, finally, it complained that Wife “offered no guidance on how to feasibly implement” a present-tense reading. Id. ¶ 34. Wife contends that the most reasonable interpretation of the statute is hers: that the plain language of the statute “requires that cohabitation be ongoing to terminate alimony.”

¶22 When we interpret statutes, “our primary objective is to ascertain the intent of the legislature.” Penunuri v. Sundance Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (citation omitted).

Since “‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” In so doing, “[w]e presume that the legislature used each word advisedly.” . . . When we can ascertain the intent of the legislature from the statutory terms alone, ”no other interpretive tools are needed,” and our task of statutory construction is typically at an end.

Bagley v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000 (alterations in original) (citations omitted). We review questions of statutory interpretation for correctness affording the court of appeals’ opinion no deference. Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3.

¶23 We believe the court of appeals erred in reading less into the word is than the word demands. As the court of appeals noted, “[i]nstead of ‘is,’ the legislature certainly could have used the present perfect tense—‘has cohabited’—which would have ‘denote[d] an act, state, or condition that is now completed or continues up to the present.’” Scott, 2016 UT App 31, ¶ 32 (second alteration in original) (citation omitted); see also Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past . . . , but it did not choose this readily available option.”). And the court of appeals admitted that

the strongest statutory support for Wife’s interpretation of the [statute] is the use of the presenttense “is.”

Scott, 2016 UT App 31, ¶ 32. We agree: the strongest support for Wife’s interpretation of the statute is, indeed, the language itself. The language of the statute provides that alimony terminates upon establishment “that the former spouse is cohabitating with another person.” UTAH CODE § 30-3-5 (10) (emphasis added). “Is cohabiting” is a verb phrase comprised of two verbs: the present tense auxiliary “is” and the present participle “cohabiting.” Be, cohabit, -ing, OXFORDDICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). The present participle of any verb—like cohabiting—paired with is creates a “continuous tense[].” Be, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). And continuing means ongoing, or “still in progress.” Continue, ongoing, OXFORD DICTIONARY OF ENGLISH IPHONE APP VERSION 9.0.2 (2017). In light of the statute’s plain language, we cannot see how a showing of anything less than present or ongoing cohabitation meets the statute’s terms head-on.

¶24 A statutory reading that credits a verb’s tense is not uncommon. Our own court of appeals relied on similar reasoning in Prows v. Labor Commission: “Typically, we understand ‘is’ as a present-tense form of the verb ‘to be.’ Accordingly, we assume that the legislature used ‘is’ here as a present-tense verb.” 2014 UT App 196, ¶ 11, 333 P.3d 1261 (citation omitted). We have done likewise. See Richards v. Brown, 2012 UT 14, ¶ 27, 274 P.3d 911 (interpreting a statute according to the “present perfect tense”). And Utah is in good company. See, e.g., Sherley v. Sebelius, 644 F.3d 388, 394 (D.C. Cir. 2011) (“The use of the present tense in a statute strongly suggests it does not extend to past actions. The Dictionary Act provides ‘unless the context indicates otherwise . . . words used in the present tense include the future as well as the present.’” (omission in original) (quoting 1 U.S.C. § 1); United States v. Williams, 462 F. Supp. 2d 342, 344 (E.D.N.Y. 2006) (“In short, ‘is’ means ‘is,’ not ‘is or was’ or ‘is, depending on the chronology of events.’”), aff’d sub nom. United States v. Darden, 539 F.3d 116 (2d Cir. 2008); see also AK Steel Corp. v. Commonwealth, 87 S.W.3d 15, 18 n.7 (Ky. Ct. App. 2002) (citations omitted) (“This is not the first time a judicial body has been presented with the surprisingly difficult task of discerning the meaning of a monosyllabic word of repeated, everyday usage.”). Not for nothing, the Supreme Court of the United States has likewise indicated that, “[c]onsistent with normal usage, we have frequently looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach.” Carr v. United States, 560 U.S. 438, 448 (2010); see, e.g., United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”).

¶25 The court of appeals reached a contrary conclusion reasoning that the Cohabitation Provision immediately follows the Remarriage Provision and that “[i]t appears that the legislature had the same purpose in enacting each provision: to terminate alimony when a new relationship ‘legally or functionally replaces the need for financial support.’” Scott, 2016 UT App 31, ¶ 29 (citation omitted). Viewing the statute through the prism of the statute’s purported purpose, the court of appeals concluded that its reading would allow the “alimony consequences [to] take effect as of the date cohabitation began, just as in the case of a remarriage.” Id. ¶ 31.

¶26 The court of appeals noted that the only significant difference between Utah Code section 30-3-5(9), the Death or Remarriage Provision, and section 30-3-5(10), the Cohabitation

Provision, is “the means by which termination [of alimony] occurs.” Id. ¶ 29. The language of the Death or Remarriage Provision provides that alimony terminates automatically “upon the remarriage or death” of the former spouse; however, the Cohabitation Provision provides that alimony terminates “upon establishment . . . that the former spouse is cohabitating.” UTAH CODE § 30-3-5(9), (10) (emphases added).[6]

[6] Husband cites Black v. Black for the proposition that cohabitation need not be ongoing: “the order imposing alimony terminate[s] automatically upon the establishment of cohabitation.” 2008 UT App 465, ¶ 8, 199 P.3d 371. This passage is court of appeals dicta and does not bind us. Moreover, in light of our decision today, it misstates the law.

But because the court of appeals posited that the legislature must have wanted both provisions to operate in a similar fashion, it looked to harmonize the statutes in a fashion that would permit the “alimony consequences” to “take effect as of the date cohabitation began,” and consequently minimized the differences in the statutory language. Scott, 2016 UT App 31, ¶ 31. But if we start from the premise that we should discern what the legislature intended from the plain language of the text unencumbered by notions of what we think the legislature must have wanted the language to accomplish, the difference in the language assumes greater importance. See, e.g., Penunuri, 2013 UT 22, ¶ 15 (“Because ‘[t]he best evidence of the legislature’s intent is the plain language of the statute itself,’ we look first to the plain language of the statute.” (alteration in original) (citation omitted)); Ivory Homes, Ltd. v. Utah State Tax Comm’n, 2011 UT 54, ¶ 21, 266 P.3d 751 (“To discern legislative intent, we first look to the plain language of the statute.”); K & T, Inc. v. Koroulis, 888 P.2d 623, 627 (Utah 1994) (“When faced with a question of statutory construction, we look first to the plain language of the statute.”). Starting with the plain language, we can infer that the legislature intended that alimony cease upon remarriage or death, but that, in the case of cohabitation, it would terminate upon establishment of present cohabitation— even if that meant that the provisions would operate differently.[7]

[7] The court of appeals also resisted this conclusion because it might allow for “alimony reinstatement once cohabitation ends.” Scott, 2016 UT App 31, ¶ 32. The court of appeals opined that if the legislature wanted this result, it could have said so explicitly, perhaps by including a provision that stated “that alimony is only suspended during cohabitation.” Id. We see two issues with this conclusion. First, as written, the statute does not suspend alimony during cohabitation. The statute’s plain language does not require the resumption of alimony payments after the paying spouse establishes cohabitation, even if the cohabiting later ends. The seemingly anomalous result the court of appeals assails will occur only when the cohabitation begins and ends before the paying spouse can file a termination petition. Second, although we wholeheartedly agree with the court of appeals that the legislature could have been clearer, we are not justified from departing from the plain language of the statute just because we can envision a manner in which the legislature could have expressed its intent more clearly.

¶27 We understand the court of appeals’ instinct to push against the result the plain language yields, and we understand the temptation to read the statute in a fashion that treats cohabitation identically to remarriage. It may seem incongruous that a marriage lasting forty-eight hours will terminate alimony but that a cohabiting relationship lasting years may not if that relationship ends before the paying spouse files to terminate alimony. But we do not believe, as the court of appeals did, that this is a result that the legislature “could not have intended.” Scott, 2016 UT App 31, ¶ 33 (quoting Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 26, 267 P.3d 863 (invoking “absurdity” doctrine)).

¶28 Both Husband and the court of appeals invoke the absurdity doctrine without calling it by name. The absurdity doctrine permits us to reform unambiguous statutory language where the language would lead to an absurd result. Bagley, 2016 UT 48, ¶ 27.

[T]his court will not apply the absurdity doctrine unless “the operation of the plain language . . . [is] so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” This standard is satisfied only if the legislature could not reasonably have intended the result.

Id. ¶ 28 (second alteration in original) (omission in original) (citations omitted). We concede that the legislature could have intended a different result—in fact, it could have intended the result the court of appeals envisioned, one where the Remarriage and Cohabitation Provisions yield the same outcome—but we do not believe that the result the plain language dictates is absurd, let alone “so overwhelmingly absurd that no rational legislator could have intended the statute to operate in such a manner.” Id. (citations omitted). As such, it is our obligation to take the plain language at face value and trust the legislature to amend the statute if it intended a different result.[8]

[8] Of course, parties unhappy with this statutory default may choose instead to agree to a divorce decree that terminates alimony upon cohabitation.

¶29 The court of appeals also sought to avoid the decision we reach because it believed that “there is the potential that the couple will simply cease cohabitation in advance of that date to avoid the consequence if the Cohabitation Provision were to require that the recipient spouse ‘is cohabitating’ at the time of hearing or trial.” Scott, 2016 UT App 31, ¶ 34.

¶30 As an initial matter, the relevant date is not the hearing or trial, but the date of filing. The present tense is demands the condition to be present at the time the paying spouse declares before the court that a former spouse is cohabiting. That declaration takes place on the date of filing. Cf. Grupo Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 570–71 (2004) (“‘[J]urisdiction of the court depends upon the state of things at time of the action brought.’ . . . [The timeof-filing rule] measures all challenges to subject-matter jurisdiction premised upon diversity of citizenship against the state of facts that existed at the time of filing.”) (citations omitted); Int’l Trading Corp. v. Edison, 109 F.2d 825, 826 (D.C. Cir. 1939) (requiring a “duty [to] exist at the time of filing a petition for mandamus”); Spectra-Physics, Inc. v. Coherent, Inc., 827 F.2d 1524, 1535 (Fed. Cir. 1987) (requiring “knowledge of facts within the possession of the inventor at the time of filing” in the patent context); Craig v. Beto, 458 F.2d 1131, 1134 (5th Cir. 1972) (requiring a prisoner to be serving “a sentence . . . at the time of filing” in the habeas context); Koch v. Carmona, 643 N.E.2d 1376, 1381 (Ill. App. Ct. 1994) (evaluating an attorney’s conduct “under the circumstances existing at the time of the filing” in the attorney discipline context); W. VA. CODE § 49-4-601(i) (requiring findings to be “based upon conditions existing at the time of the filing” in child abuse and neglect context); 38 U.S.C. § 109 (1991) (providing that no benefit “shall be extended to any person who is not a resident of the United States at the time of filing [a] claim”).

¶31 We recognize that this does not entirely ameliorate the problem the court of appeals recognized, i.e., that a couple might cease cohabiting to avoid forfeiting alimony. It is true that a couple who has been warned a paying spouse is planning to move to terminate alimony could choose to stop cohabiting to avoid the termination. And, if that occurs, the continued payment of alimony would square with the policy behind alimony. See Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985) (recognizing that the “most important function of alimony is to provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage, and to prevent the [receiving spouse] from becoming a public charge” (citation omitted)); Myers v. Myers, 2010 UT App 74, ¶ 12, 231 P.3d 815 (stating that “the principal purpose of alimony is economic”). To the extent that a cohabitant might engage in subterfuge to create the appearance that the cohabiting has terminated when it has not, we trust our district courts and the adversarial system to do their best to detect efforts to manipulate the outcome. See generally Pendleton v. Pendleton, 918 P.2d 159 (Utah Ct. App. 1996) (finding that boyfriend and former spouse resided together under Utah Code section 30-3-5(6) (1989) although boyfriend maintained a separate apartment, among other things).

II. Wife Is Not Entitled to Attorney Fees in Defending Husband’s Petition to Terminate Alimony

¶32 Wife also asks this court to remand to the district court for the purpose of awarding Wife attorney fees both at trial and on appeal under Utah Code section 30-3-3. The statute provides for an award of attorney fees “in any action to establish . . . alimony” or “[i]n any action to enforce an order of . . . alimony”; it does not provide for attorney fees to defend an action to terminate alimony. UTAH CODE § 30-3-3(1), (2) (emphases added). Here, there is no allegation that Husband failed to continue to pay alimony. This is not a situation where the paying spouse stops paying and the receiving spouse must petition the district court to intervene and enforce its order. Thus, Wife’s efforts to resist Husband’s motion to terminate alimony are not compensable under Utah Code section 30-3-3’s plain language.

CONCLUSION

¶33 We conclude that Utah Code section 30-3-5(10) requires the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony. We clarify that an appellee wishing to contest our review of an arguably unpreserved issue already reached by the court of appeals has an obligation to explain how the court of appeals erred in reaching the unpreserved issue. Finally, defending a motion to terminate alimony does not entitle the defending spouse to an award of attorney fees under Utah Code section 30-3-3.

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

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Christensen v. Christensen – 2017 UT App 120 – July 20, 2017

Christensen v. Christensen – 2017 UT App 120 – July 20, 2017

THE UTAH COURT OF APPEALS

ELENA KAY CHRISTENSEN,

Appellee,

v.

BRENT CHRISTENSEN,

Appellant.

Opinion

No. 20150994-CA

Filed July 20, 2017

Second District Court, Ogden Department

The Honorable Ernest W. Jones

No. 094901718

Randall W. Richards, Attorney for Appellant

Elena Kay Christensen, Appellee Pro Se

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which

JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

VOROS, Judge:

¶1 Brent Christensen and Elena Kay Christensen (now Elena

Watts) divorced in 2012.[1] Brent has since retired and Elena has shared a residence with another man.

[1.] In cases where the parties shared a last name, our practice is to refer to them by their first name, with this court intending no disrespect by the apparent informality. Earhart v. Earhart, 2015 UT App 308, ¶ 2 n.1, 365 P.3d 719.

Based on these and other factors, Brent filed a petition to modify his child support and alimony obligations. The trial court ruled that Elena was not cohabiting and thus refused to terminate alimony. The court also reduced the alimony payment, but prospectively only; refused to modify child support; and awarded Elena a money judgment for arrearages. Because the court considered a legally irrelevant factor in determining cohabitation, we remand for further findings on that question. In all other respects, we affirm.

BACKGROUND

¶2 Brent and Elena divorced in October 2012. The trial court awarded the parties joint legal and physical custody of their four children. At the time of the divorce, Brent was employed as a school teacher with a monthly income of $4,749.15. Elena had stayed at home to care for the children during the marriage, but the court found her capable of employment and imputed to her a monthly income of $1,365. The court ordered Brent to pay $1,200 per month in alimony and $548 per month in child support. When Brent retired in September 2014, he stopped paying alimony and child support, and Elena began receiving about $800 per month as a share of his pension.

¶3 The following year Brent filed a petition to modify alimony and child support. He sought to terminate alimony on the ground that Elena was cohabiting with her boyfriend. He also claimed a material change in his income due to retirement. Specifically, he maintained that he was unable to work due to stress from the divorce and was thereby forced to retire. He asserted that he had a constitutional right to retire, as friends his age had done, and that he wanted to be a stay-at-home parent. In response, Elena sought an award of unpaid alimony and child support.[2]

[2.] Brent had previously filed a petition for an order to show cause for Elena’s failure to pay her portion of the children’s health insurance premiums and had obtained a judgment against her for $1,674.90. Elena requests that we vacate the $1,674.90 judgment against her for insurance premium arrears.

However, this claim of error is not properly before us because Elena “failed to bring [it] either by way of a cross-appeal or by separate petition for interlocutory appeal.” See State v. Coble, 2010 UT App 98, ¶ 10, 232 P.3d 538 (“‘[Litigants must] cross-appeal or cross-petition if they wish to attack a judgment of a lower court for the purpose of enlarging their own rights or lessening the rights of their opponent.’” (alteration in original) (quoting State v. South, 924 P.2d 354, 355 (Utah 1996))). We therefore do not address it further.

¶4 Following a hearing, the trial court ruled on the petition to modify. The court denied Brent’s request to terminate alimony on the basis of Elena’s cohabitation. The court found that the evidence failed to establish cohabitation; the court noted particularly that Elena did not hold herself out as the spouse of her boyfriend or share living expenses, assets, or bank accounts with him.

¶5 The court also rejected Brent’s claim that his retirement justified a termination or reduction in alimony. The court found that Brent “is physically and mentally able to work and provide for the family” and that, while his income had decreased, so had his expenses. The court therefore set his monthly income at $4,700 “consistent with his historical earnings.”

¶6 However, the court reduced Brent’s alimony obligation by the amount of the monthly retirement payments to Elena from Brent’s pension, setting alimony at $400 ($1200 less $800) for future payments only.

¶7 The court then denied Brent’s petition to modify child support. The court ruled that child support would remain at $548 per month, finding that amount to be “appropriate based on the income of each parent.”

¶8 Finally, the court entered judgment against Brent in the amount of $19,043.61 for alimony and child support arrears as of October 1, 2015.

ISSUES AND STANDARDS OF REVIEW

¶9 Brent asserts four claims of error on appeal. First, he contends that the trial court erred in finding that the evidence did not establish that Elena cohabited with another man. “Whether cohabitation exists is a mixed question of fact and law. While we defer to the trial court’s factual findings unless they are shown to be clearly erroneous, we review its ultimate conclusion for correctness.” Myers v. Myers (Myers I), 2010 UT App 74, ¶ 10, 231 P.3d 815 (citations and internal quotation marks omitted), aff’d, Myers v. Myers (Myers II), 2011 UT 65, 266 P.3d 806.

¶10 Second, Brent contends that the trial court erred in finding him capable of employment. A “[trial] court’s determination that [a party] is capable of employment is within the sound discretion of the trial court since the court is in an advantaged position to weigh the evidence, determine the persuasive value of the evidence, and make determinations based on the evidence.” Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223. Brent also challenges the related findings that no substantial change in circumstances warranted modification of alimony, that he is voluntarily unemployed, and that his employment capacity and earning potential support imputation of income. “The determination of the trial court that there [has or has not] been a substantial change of circumstances . . . is presumed valid, and we review the ruling under an abuse of discretion standard.” Busche v. Busche, 2012 UT App 16, ¶ 7, 272 P.3d 748 (alteration and omission in original) (citation and internal quotation marks omitted). We also review the trial court’s finding of voluntary unemployment or underemployment and its calculation of imputed income for an abuse of discretion. See Rayner v. Rayner, 2013 UT App 269, ¶ 4, 316 P.3d 455. “We will not disturb a trial court’s findings of fact unless they are clearly erroneous, that is, unless they are in conflict with the clear weight of the evidence, or this court has a definite and firm conviction that a mistake has been made.” Pope v. Pope, 2017 UT App 24, ¶ 4, 392 P.3d 886 (citation and internal quotation marks omitted).

¶11 Third, Brent contends that the trial court erred in declining to apply the modification of the alimony award retroactively. “A [trial] court’s determination regarding the retroactive modification of a spousal support obligation is reviewed for an abuse of discretion.” McPherson v. McPherson, 2011 UT App 382, ¶ 12, 265 P.3d 839.

¶12 Fourth, Brent contends that the trial court erred in its child support calculation. We review decisions on child support under the abuse of discretion standard. Andrus v. Andrus, 2007 UT App 291, ¶ 9, 169 P.3d 754.

ANALYSIS

  1. Cohabitation

¶13 Brent contends that the trial court erred in ruling the evidence of shared common residency and consistent sexual relations did not establish cohabitation. Specifically, he argues that “the evidence established that [Elena] was living together with her boyfriend as a family, sharing the same bedroom and engaging in normal sexual relations.” He also alleges that the trial court “ignored [Elena’s admission] that she paid rent and all of the expenses for food and everything” in the household. Finally, he argues that the fact that Elena and her boyfriend did not hold themselves out to be husband and wife has never been a criterion for determining cohabitation.

¶14 “Any order of the court that a party pay alimony to a former spouse terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2013). Utah courts have not delineated a list of required elements for cohabitation, but instead have identified “general hallmarks of marriage (and thus cohabitation).” Myers II, 2011 UT 65, ¶ 24, 266 P.3d 806. “Those hallmarks include a shared residence, an intimate relationship, and a common household involving shared expenses and shared decisions.” Id. Other relevant considerations include “the length and continuity of the relationship, the amount of time the couple spends together, the nature of the activities the couple engages in, and whether the couple spends vacations and holidays together.” Id. ¶ 24 n.3. However, whether the couple has a reputation as being married, or hold themselves out as being married, is not a relevant consideration in determining cohabitation for purposes of section 30-3-5(10). Id. ¶ 24 n.4.[3]

[3.] In contrast, the fact that a couple “hold themselves out as and have acquired a uniform and general reputation as” spouses is a badge of a valid—though unsolemnized—marriage. See Utah Code Ann. § 30-1-4.5(1)(e) (LexisNexis 2012).

¶15 Here, Elena acknowledged that she was sharing a bedroom with her boyfriend. However, when asked whether she was cohabiting with him, she responded that after she was evicted from her home, she “had nowhere to go so [she] moved in at [his] address.” She signed a written “Living Arrangement Agreement” in which she agreed to pay $500 per month “to help with the payment of the mortgage and the cost of utilities as part of [her] contribution of living expenses” for herself and her four children.

¶16 The trial court noted that Elena admitted that “she shares common residency with a man and that they have sexual relations.” The court reasoned that although these factors are relevant, “they do not satisfy the definition of cohabitation” under Myers I, 2010 UT App 74, 231 P.3d 815, and related cases. The court then considered the following additional factors. First, it found “no evidence that [Elena] held herself out as the wife [of] the boyfriend.” The court also found that she and the boyfriend “did not have a reputation as husband and wife.” Finally, it found no evidence that she “shared living expenses, assets, or bank accounts with the boyfriend.” Relying on these factors, the court concluded that the “evidence is insufficient to establish cohabitation as outlined in [Myers I].” It therefore denied Brent’s petition to terminate alimony on the basis of cohabitation.

¶17 First, as noted above, Brent is correct that whether two people hold themselves out, or have a reputation, as being married plays no part in the cohabitation analysis for purposes of determining whether alimony must be terminated. See Myers II, 2011 UT 65, ¶ 24 n.4. Thus, the trial court erred in relying on this factor. However, the court correctly found that no evidence supported a finding that Elena and her boyfriend share living expenses, assets, or bank accounts. On the contrary, she paid him room and board pursuant to the terms of a written agreement.

¶18 In sum, Elena and her boyfriend share a residence and an intimate relationship but not living expenses. But the record does not show evidence of the other pertinent considerations outlined above. For example, the record does not show that they jointly make life decisions. Nor does the record show the length of their relationship, the amount of time they spend together, or whether they spend vacations and holidays together. See id. ¶ 24 n.3 (noting that “these considerations [are] not prerequisites or requirements,” but are relevant to the “broader picture” of “whether a relationship resembles that of a married couple”). Thus, on this record we cannot say that the trial court’s erroneous reliance on the couple’s reputation was harmless. Accordingly, we remand this issue to the trial court to rebalance the factors and determine in the first instance whether the evidence shows that Elena and her boyfriend are cohabiting under section 30-3-5(10) as construed in Myers II.

  1. Employment

¶19 Brent next contends that the trial court erred in finding that he was capable of full-time work. He argues that because the trial court did not “make any findings supporting that he was employable,” it should not have imputed “additional income to his $3,037 per month retirement benefit.” He further argues that the trial court should have considered that he wanted to be a stay-at-home father, that “his medical practitioner advised retirement,” and that he was “forced to retire due to physical and psychological problems.”

¶20 After entering a divorce decree, “[t]he court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code Ann. § 30-3-5(8)(i)(i) (LexisNexis 2013). Thus, to succeed on a petition to modify, “the moving party must first show that a substantial material change of circumstance has occurred since the entry of the decree and [second, that the change was] not contemplated in the decree itself.” Diener v. Diener, 2004 UT App 314, ¶ 7, 98 P.3d 1178 (alteration in original) (citation and internal quotation marks omitted). The “party seeking modification . . . has the burden of showing a substantial change in circumstances.” Id. (omission in original) (citation and internal quotation marks omitted).

¶21 The trial court must first determine whether a substantial change in circumstances warrants consideration of the modification petition, and if so, then the court will conduct the imputation analysis. Busche v. Busche, 2012 UT App 16, ¶ 13, 272 P.3d 748. The imputation analysis “involves determining whether [a party] is voluntarily unemployed or underemployed and, if so, how much income ought to be imputed.” Id. “A person is voluntarily unemployed or underemployed when he or she intentionally chooses of his or her own free will to become unemployed or underemployed.” Ouk v. Ouk, 2015 UT App 104, ¶ 7, 348 P.3d 751 (citation and internal quotation marks omitted).

¶22 “If income is imputed to a parent, the income shall be based upon employment potential and probable earnings considering, to the extent known: employment opportunities; work history; occupation qualifications; . . . and prevailing earnings and job availability for persons of similar backgrounds in the community.” Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis 2012). “Imputation cannot be premised upon mere conjecture; instead, it demands a careful and precise assessment requiring detailed findings.” Rayner v. Rayner, 2013 UT App 269, ¶ 10, 316 P.3d 455 (citation and internal quotation marks omitted). Thus, “the trial court must enter not just a finding of voluntary unemployment . . . but specific, detailed findings as to the evidentiary basis for the imputation.” Id. (citation and internal quotation marks omitted). To challenge the trial court’s findings, Brent must marshal the evidence in support of its decision and demonstrate that, despite this evidence, “the trial court’s findings are so lacking in support as to be ‘against the clear weight of the evidence,’ thus making them ‘clearly erroneous.’” See Hagan v. Hagan, 810 P.2d 478, 481 (Utah Ct. App. 1991) (quoting In re Estate of Bartell, 776 P.2d 885, 886 (Utah 1989)).

¶23 Here, the trial court began by considering Brent’s claim of “a material change in income to justify modification.” The court found that Elena’s income increased from $1,365 to $1,640 per month (not including her share of Brent’s pension) and that Brent’s monthly income decreased from $4,749 from his salary as a school teacher to $3,037.33 from his retirement pension. However, the court also found that Brent’s monthly expenses decreased—in particular, that he had “no house payment or vehicle payment.” Relying on these calculations, the court concluded that “[w]hile [Brent’s] income has decreased so have his expenses.” Thus, the court did not find his change in income to be a substantial change in circumstances justifying modification of alimony.

¶24 Brent has not challenged any of these factual findings as clearly erroneous. Instead, he cursorily argues that his retirement “resulted in a significant reduction to his personal income.” But he “has neither marshaled the evidence in support of the trial court’s decision nor demonstrated that despite this evidence, the trial court’s findings are so lacking in support as to be against the clear weight of the evidence.” See id. at 483. Accordingly, he has not overcome the presumption that the court did not abuse its discretion in concluding that there was no substantial change in circumstances warranting modification of alimony. See Busche, 2012 UT App 16, ¶ 7.

¶25 The court also addressed the issue of whether Brent was voluntarily unemployed. Brent testified to four reasons why he was not working: that he had “a constitutional right to retire and remain retired after teaching 32 years in the public school education profession”; that he “was forced to retire by the Ogden City School District or [he] would have probably been fired”; that “many of [his] peers that are [his] same age whose wives didn’t divorce them are now retiring”; and that he “want[s] to be a stay-at-home parent for the best benefit of [his] children.”

¶26 Brent also offered expert testimony from Damon Marsh, a physician’s assistant. Marsh’s testimony was mixed. On the one hand, he opined that, based on various conditions, Brent’s retirement was “medically necessary.” On the other hand, he testified that Brent might be able to return to work “six months [to] a year” after vocational rehabilitation, a psychological assessment, and an orthopedic evaluation. And when asked by the court whether his testimony that Brent couldn’t go back to work meant “that [Brent is] not capable of working period,” Marsh responded, “I’m not saying that, no.”

Christensen v. Christensen

¶27 The court considered each of Brent’s arguments about his employment capacity. The court first noted “there is no constitutional right to retire.” The court next considered Marsh’s testimony and noted that “Marsh stated [Brent] is capable of working.” The court also noted that Brent was “58 years old” and “retired from teaching after 32 years.” The court then rejected his argument that being “depressed from the divorce and forced retirement” rendered him unable to work. The court also gave little or no weight to his argument that his “wishes to enjoy retirement and stay at home with the children” justified a reduction in child support or alimony. Thus, the court found that he was “physically and mentally able to work and provide for the family.”

¶28 The court also considered Brent’s earning potential. The court found that while he “did not elect to stop working as a teacher, he is capable of employment in other fields.” The court noted that he “has a college degree and is physically and mentally able to work” and concluded that the “stress, depression, and anxiety he feels do not prevent [him] from working.”

¶29 The court concluded that “[t]he change in circumstances was created by [Brent]” and that he “should not benefit from a voluntary decision to stop working.” The court therefore imputed his “income at $4,700 a month which is consistent with his historical earnings.”

¶30 On appeal, Brent presents the same evidence showing a lack of employment capacity as he did in the trial court. He argues that “there is simply no evidence to support the claim that [he] is purposefully unemployed simply to reduce his child support or alimony.” He also argues that the court’s imputation analysis is based on mere conjecture that he may be capable of employment after rehabilitation.

¶31 Again, Brent has failed to marshal the evidence in support of the court’s findings that he was capable of employment and that he was voluntarily unemployed, and he has not demonstrated that these findings are against the clear weight of the evidence. See Hagan v. Hagan, 810 P.2d 478, 483 (Utah Ct. App. 1991). “Formal briefing requirements aside, an argument that does not fully acknowledge the evidence supporting a finding of fact has little chance, as a matter of logic, of demonstrating that the finding lacked adequate factual support.” Bailey v. Retirement Board, 2012 UT App 365, ¶ 8, 294 P.3d 577. Thus, “a party challenging a factual finding . . . will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal.” State v. Nielsen, 2014 UT 10, ¶ 42, 326 P.3d 645.

¶32 This principle applies here. The evidence before the court, canvassed above, is sufficient to support the court’s findings. And because employment capacity “is within the sound discretion of the trial court,” we defer to the trial court’s finding that Brent is capable of employment. See Leppert v. Leppert, 2009 UT App 10, ¶ 12, 200 P.3d 223 (“[T]he court is in an advantaged position to weigh the evidence, determine the persuasive value of the evidence, and make determinations based on the evidence.”). Based on the court’s detailed findings analyzing Brent’s employment capacity and earning potential, we further conclude that the court did not abuse its discretion in finding that he was voluntarily unemployed or in imputing income to him. See Rayner v. Rayner, 2013 UT App 269, ¶ 10, 316 P.3d 455.

III. Alimony

¶33 Brent next contends that “[t]he trial court erred in failing to retroactively award a reduction in alimony due to [Elena’s] receiving retirement benefits.” He argues that the trial court erred by “failing to follow statutory requirements that alimony modification should be retroactive to the date of the service of the petition to modify.” In addition, he argues that even if the court had discretion to refuse to apply the alimony modification retroactively, “the court overstepped its discretion” in refusing to do so here. Specifically, he alleges that “[t]he trial court gave no explanation as to the reasoning for allowing a 12-month windfall to [Elena]” during which she received $800 per month in retirement payments in addition to him owing her $1,200 per month in alimony.

¶34 The Utah Child Support Act provides that after an installment of child or spousal support falls due, it is “not subject to retroactive modification.” Utah Code Ann. § 78B-12-112(3)(c) (LexisNexis 2012); see also Wall v. Wall, 2007 UT App 61, ¶ 20, 157 P.3d 341 (stating that, as a general rule, child support orders are not subject to retroactive modification). However, the following subsection contains an exception allowing the court to retroactively modify a child or spousal support obligation:

A child or spousal support payment under a support order may be modified with respect to any period during which a modification is pending, but only from the date of service of the pleading on the obligee, if the obligor is the petitioner, or on the obligor, if the obligee is the petitioner. If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected. Once the tribunal determines that a modification is appropriate, the tribunal shall order a judgment to be entered for any difference in the original order and the modified amount for the period from the service of the pleading until the final order of modification is entered.

Utah Code Ann. § 78B-12-112(4).

¶35 Brent relies on the second sentence of this section, which read in isolation does seem to mandate retroactive modification of support:

If the tribunal orders that the support should be modified, the effective date of the modification shall be the month following service on the parent whose support is affected.

Id. However, we do not read statutory text in isolation, but in context. See State v. Robertson, 2017 UT 27, ¶ 32 (“A familiar canon of statutory construction is that the context of a statute may eliminate potential interpretations of a statutory phrase.”); see also Arkansas Game & Fish Comm’n v. United States, 568 U.S. 23, 36 (2012) (stating that “the first rule of . . . statutory interpretation is: Read on.”). And the preceding sentence grants courts “the discretion to determine both if and when a modified . . . support award should be made retroactive.” Wall, 2007 UT App 61, ¶ 21 (citation and internal quotation marks omitted). It also grants the court discretion to modify alimony for any period during which the petition for modification is pending:

A child or spousal support obligation under a support order may be modified with respect to any period during which a modification is pending . . . .

Utah Code Ann. § 78B-12-112(4). Accordingly, as we have previously held, the statute provides “that support may be modified retroactively with respect to any post-service period, not that it must be.” Wall, 2007 UT App 61, ¶ 21 (emphases added) (citation and internal quotation marks omitted). Thus, “[c]ourts have discretion”—but not a duty—“to modify child support and alimony awards retroactively.” See Roberts v. Roberts, 2014 UT App 211, ¶ 25, 335 P.3d 378. In sum, Brent’s contention that Utah law requires retroactive modification of his alimony obligation, though enjoying some textual support, fails on closer inspection of the controlling statute and opinions of this court construing it.

¶36 We next consider Brent’s contention that, even if the trial court had discretion to deny retroactive modification, it exceeded its discretion in doing so. In McPherson v. McPherson, we stated that trial courts “have considerable discretion in determining alimony, and harsh awards or a disparity in obligations can be justified by a finding of one or more discretionary factors.” 2011 UT App 382, ¶ 20, 265 P.3d 839 (citation and internal quotation marks omitted). For example, “an appropriate finding of voluntary underemployment and a resulting decision to impute income at a higher level may serve to motivate a spouse to seek employment more in line with his true earning capacity[.]” See id. ¶ 21.

¶37 Here, the trial court agreed with Brent’s argument that “alimony should be reduced by $800” because Elena receives a payment in that amount each month as a portion of his pension. The court also agreed that “[i]t would be a windfall for [Elena] to receive both retirement and alimony,” where the retirement was not part of the divorce. The court therefore reduced alimony from $1,200 to $400 per month. The court noted that Elena would still receive a total of $1,200 per month from Brent including the $800 retirement payment and the $400 alimony payment. However, while the court granted Brent’s motion to reduce alimony for future payments, it ruled that the “modification of alimony is not retroactive.” The court thus declined to alter the amount of the $19,043.61 judgment against him for unpaid alimony and child support. The court found that he “has the financial means to pay child support and alimony,” noting that he owned a $200,000 home that was paid off and had a 401(k) account with over $50,000.

¶38 Given the court’s “considerable discretion in determining alimony,” its finding that Brent was voluntarily unemployed and its decision to impute higher income to him constituted “discretionary factors” justifying its denial of retroactive modification. See id. ¶ 20 (citation and internal quotation marks omitted). We therefore conclude that the trial court did not abuse its discretion in declining retroactive modification of the alimony award.

  1. Child Support

¶39 Brent contends that “[t]he trial court erred in calculating child support.” He argues that “[t]he trial court made several findings that should have impacted the child support calculation,” yet “without any explanation ordered that the child support remain at $548 per month.” He alleges that “[t]he trial court clearly did not utilize the child support guidelines and failed to make any findings to support a deviation from the guidelines.”

¶40 “A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.” Utah Code Ann. § 78B-12¬ 210(9)(a) (LexisNexis 2012). “A substantial change in circumstances sufficient to warrant modification occurs if one of the parent’s incomes changes ‘30% or more’ or there are ‘material changes in the employment potential and ability of a parent to earn’ that cause ‘a difference of 15% or more between the payor’s [original] support amount and the payor’s support amount that would be required under the guidelines’ using the new income.” Gore v. Grant, 2015 UT App 113, ¶ 14, 349 P.3d 779 (alteration in original) (quoting Utah Code Ann. § 78B-12- 210(9)(b)–(c)). “When such a substantial change of circumstances occurs, it is presumed that child support will be modified to the amount set forth in the guidelines.” Id. (citing Utah Code Ann. § 78B-12-210(2)). “That presumption is rebutted, however, if the . . . court determines that ‘complying with a provision of the guidelines or ordering an award amount resulting from use of the guidelines would be unjust, inappropriate, or not in the best interest of a child in a particular case.’” Id. (quoting Utah Code Ann. § 78B-12-210(2)(a), (3)). “Should the court determine that the guidelines amount has been rebutted, the court shall make a finding to that effect,” id. (citing Utah Code Ann. § 78B-12¬ 210(3)), and “then must devise a support order” based on statutory factors, id. (citing Utah Code Ann. § 78B-12-202(3)).

¶41 Here, the trial court ruled that child support would remain at $548 per month. As explained above, although the court found that Brent’s income decreased from $4,749.15 to $3,037.33 per month, the court imputed his monthly income at $4,700 per month. The court also found that Elena’s income increased from $1,365 per month at the time of the divorce to $1,640 per month—not including her share of Brent’s pension¬ at the time of the petition to modify. The court determined that “child support in the sum of $548 is appropriate based on the income of each parent.”

¶42 Brent argues that, because the trial court found that the parties’ incomes changed, the court should have used the statutory child support guidelines to recalculate the amount of child support. But he has not shown a substantial change in circumstances in light of his imputed income as required by the statutory guidelines outlined above. See id. Given that Brent failed to argue any additional grounds for modification of child support, the court did not abuse its discretion in denying the petition to modify child support. See Andrus v. Andrus, 2007 UT App 291, ¶ 9, 169 P.3d 754.

¶43 We conclude by briefly addressing Brent’s argument at trial that his payment of the children’s school expenses should absolve him of the obligation to pay child support. We disagree. It is well-established that “[b]oth parents have an obligation to support their children. A child’s right to that support is paramount.” See Woodward v. Woodward, 709 P.2d 393, 394 (Utah 1985). This principle applies in the context of school expenses. “If child support is inadequate to cover expenses parents wish to incur on behalf of their children, such as private school, extracurricular activities, or . . . advanced placement tests, there is nothing to prevent parents from agreeing to share such additional expenses in the interest of their children.” Davis v. Davis, 2011 UT App 311, ¶ 15, 263 P.3d 520. “However, these things are not necessities and must generally be budgeted as part of child support if the parties cannot agree otherwise.” Id.

¶44 Here, Brent and Elena were unable to agree on how to pay for school expenses, and Brent chose to pay for school expenses rather than pay child support. However, because “each child support payment became a judgment on the date it was due,” he “cannot offset his obligation for the child support arrearages that were due long before he contributed [money] to his [children’s] education.” See Vicchrilli v. Tracy, 2011 UT App 354, ¶ 10, 264 P.3d 760. Accordingly, notwithstanding his payment of school expenses, Brent must meet his child support obligations, both past and present.

CONCLUSION

¶45 For the foregoing reasons, we conclude that the trial court did not abuse its discretion in finding that Brent’s change in income did not justify modification of alimony; that he was capable of employment; that he was voluntarily unemployed; and that his employment capacity and earning potential supported imputation of income. We further conclude that the trial court did not abuse its discretion in denying retroactive modification of alimony and in denying modification of child support. We therefore affirm these rulings. However, because we conclude that the trial court erroneously considered a legally irrelevant factor in making its cohabitation determination, we vacate that ruling and remand to the trial court to determine whether Elena cohabited under the correct legal standard.

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

Remarriage Affecting Child Support?

QUESTION: Does remarriage affect child support?

My ex-wife remarried a man who makes about 4x more than I do annually. Because of this she doesn’t have to work anymore.

I have continued to pay child support knowing that the step-parents income cannot be included in child support calculations. I may have misunderstood but I thought one of the purposes of child support was to provide similar living conditions for the children. This is obviously not the case for us.

It seems a bit silly to be paying child support every month to them when they don’t really need it. Even paying a little bit less would help me financially. What would you do in this case, if anything?

ANSWER: There may be one argument I can think of, and it is likely a long shot:

Utah Code § 78B-12-210 (Application of guidelines — Use of ordered child support) provides, in pertinent parts:

(9)(a)   A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.

*****

(b)        For purposes of this Subsection (9), a substantial change in circumstances may include:

(i)         material changes in custody;

(ii)        material changes in the relative wealth or assets of the parties;

(iii)       material changes of 30% or more in the income of a parent;

(iv)       material changes in the employment potential and ability of a parent to earn;

(v)        material changes in the medical needs of the child; or

(vi)       material changes in the legal responsibilities of either parent for the support of others.

(emphasis added)

If your ex-wife’s new husband makes four times your income AND the amount he earns is by any reasonable standard “more than enough” (i.e., they have all the money they need to survive, plus plenty to spare for the care of stepchildren), then in light of the provisions of Utah Code § 78B-12-210(9)(a) and (9)(b)(ii), one could argue that your ex-wife’s re-marriage to a spouse constitutes a material change in the relative wealth and assets of you and your ex-wife. The argument, as you hinted at, would be something like this: when in the custody of their mother and her new husband the children enjoy a material lifestyle that is not as good as my lifestyle, it’s superior to mine. She now enjoys wealth and assets that are 4 times greater than mine, so why am I paying child support to her? She does not need my child support money to maintain her the lifestyle her husband provides her and the children.

The problem you will likely face with such an argument, however, is this:

1) Your ex-wife and her husband will claim (falsely, but there is no way for you to prove it) that the stepfather absolutely, positively does not contribute to the financial support of his stepchildren, so without you paying child support the children would be destitute during the periods when the ex-wife and kids are living with her new husband. So unless you had proof that the stepfather was voluntarily taking care of the children financially and/or that the child support money you were paying to your ex-wife was not being spent on the support of your children, you’d have a hard time with this issue.

2) it could and likely would be argued (correctly) that stepparents have no legal obligation to support stepchildren, even indirectly. By arguing for a reduction in your child support obligation you are conceding that you are asking the court to make the stepfather responsible for your children’s support, and that tends to make you look like a deadbeat.

So your thought of seeking not a complete termination of child support, but a reduction may be your most likely path to success, if there is any hope of successfully reducing your child support obligation to begin with.

Thanks for your question. It’s a good question.

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

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Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question: Will the court take seriously my desire to include in the divorce decree a provision that at no time should step-parents or a parent’s significant other be inappropriately dressed?

Question Detail: My wife and I are separated now for 2 years. She served me papers because she said she never loved me and wanted a divorce. The paperwork has been all filed on my end but she still hasn’t completed her end of the paperwork. Well she has had a relationship now with a guy for 8 months. He is around my children almost every time. She has them (joint custody). She has posted pictures of him on a hike and swimming shirtless holding them with my girls on Facebook. They are ages 6 and 3. I find this to be inappropriate. Am I wrong? I have asked her not to let this continue because he doesn’t need to be skin to skin with my girls. I realize its outdoor pictures and it may appear harmless but to most people but these are my girls. I don’t even walk around or take pics like that with them. I want it to stop but she says there is nothing wrong with it. I need to know if I’m over reacting or if I make a valid case.

This is a common kind of question. This may answer your question, if you reside in Utah:

Utah Code § 76-9-702.5.  Lewdness involving a child. 

(1)        A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly does any of the following to, or in the presence of, a child who is under 14 years of age:

(a)        performs an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:

(i)         in a public place; or

(ii)        in a private place:

(A)       under circumstances the person should know will likely cause affront or alarm; or

(B)       with the intent to arouse or gratify the sexual desire of the actor or the child;

(c)        masturbates;

(d)       under circumstances not amounting to sexual exploitation of a child under Section 76-5b-201, causes a child under the age of 14 years to expose his or her genitals, anus, or breast, if female, to the actor, with the intent to arouse or gratify the sexual desire of the actor or the child; or

(e)        performs any other act of lewdness.

(2)(a)   Lewdness involving a child is a class A misdemeanor, except under Subsection (2)(b).

(b)        Lewdness involving a child is a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7; or

(ii)        the person has previously been convicted of a violation of this section.

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

Here are some more statutory provisions that may be of interest:

Utah Code § 76-9-702.  Lewdness.

(1)        A person is guilty of lewdness if the person under circumstances not amounting to rape, object rape, forcible sodomy, forcible sexual abuse, aggravated sexual assault, or an attempt to commit any of these offenses, performs any of the following acts in a public place or under circumstances which the person should know will likely cause affront or alarm to, on, or in the presence of another who is 14 years of age or older:

(a)        an act of sexual intercourse or sodomy;

(b)        exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area;

(c)        masturbates; or

(d)       any other act of lewdness.

(2)

(a)        A person convicted the first or second time of a violation of Subsection (1) is guilty of a class B misdemeanor, except under Subsection (2)(b).

(b)        A person convicted of a violation of Subsection (1) is guilty of a third degree felony if at the time of the violation:

(i)         the person is a sex offender as defined in Section 77-27-21.7;

(ii)        the person has been previously convicted two or more times of violating Subsection (1); or

(iii)       the person has previously been convicted of a violation of Subsection (1) and has also previously been convicted of a violation of Section 76-9-702.5.

(c)

(i)         For purposes of this Subsection (2) and Subsection 77-41-102(17), a plea of guilty or nolo contendere to a charge under this section that is held in abeyance under Title 77, Chapter 2a, Pleas in Abeyance, is the equivalent of a conviction.

(ii)        This Subsection (2)(c) also applies if the charge under this Subsection (2) has been subsequently reduced or dismissed in accordance with the plea in abeyance agreement.

(3)        A woman’s breast feeding, including breast feeding in any location where the woman otherwise may rightfully be, does not under any circumstance constitute a lewd act, irrespective of whether or not the breast is covered during or incidental to feeding.

Utah Code § 76-10-1227.  Indecent public displays — Definitions.

(1)        For purposes of this section and Section 76-10-1228:

(a)        “Description or depiction of illicit sex or sexual immorality” means:

(i)         human genitals in a state of sexual stimulation or arousal;

(ii)        acts of human masturbation, sexual intercourse, or sodomy;

(iii)       fondling or other erotic touching of human genitals or pubic region; or

(iv)       fondling or other erotic touching of the human buttock or female breast.

(b)        “Nude or partially denuded figure” means:

(i)         less than completely and opaquely covering human:

(A)       genitals;

(B)       pubic regions;

(C)       buttock; and

(D)       female breast below a point immediately above the top of the areola; and

(ii)        human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(2)

(a)        Subject to Subsection (2)(c), this section and Section 76-10-1228 do not apply to any material which, when taken as a whole, has serious value for minors.

(b)        As used in Subsection (2)(a), “serious value” means having serious literary, artistic, political, or scientific value for minors, taking into consideration the ages of all minors who could be exposed to the material.

(c)        A description or depiction of illicit sex or sexual immorality as defined in Subsection (1)(a)(i), (ii), or (iii) has no serious value for minors.

Utah Code § 76-10-1228.  Indecent public displays — Prohibitions — Penalty.

(1)        Subject to the affirmative defense in Subsection 76-10-1208(3), a person is guilty of a class A misdemeanor who willfully or knowingly:

(a)        engages in the business of selling, lending, giving away, showing, advertising for sale, or distributing to a minor or has in the person’s possession with intent to engage in that business or to otherwise offer for sale or commercial distribution to a minor any material with:

(i)         a description or depiction of illicit sex or sexual immorality; or

(ii)        a nude or partially denuded figure; or

(b)        publicly displays at newsstands or any other establishment frequented by minors, or where the minors are or may be invited as a part of the general public, any motion picture, or any live, taped, or recorded performance, or any still picture or photograph, or any book, pocket book, pamphlet, or magazine the cover or content of which:

(i)         exploits, is devoted to, or is principally made up of one or more descriptions or depictions of illicit sex or sexual immorality; or

(ii)        consists of one or more pictures of nude or partially denuded figures.

(2)

(a)        A violation of this section is punishable by:

(i)         a minimum mandatory fine of not less than $500; and

(ii)        incarceration, without suspension of sentence in any way, for a term of not less than 30 days.

(b)        This section supersedes Section 77-18-1.

Utah Code § 76-10-1208.  Affirmative defenses.

(1)        It is an affirmative defense to prosecution under this part that the distribution of pornographic material is restricted to institutions or persons having scientific, educational, governmental, or other similar justification for possessing pornographic material.

(2)        It is not a defense to prosecution under this part that the actor is a motion picture projectionist, usher, ticket-taker, bookstore employee, or otherwise is required to violate this part incident to the person’s employment.

(3)        It is an affirmative defense to prosecution under Section 76-10-1206, 76-10-1227, or 76-10-1228 for displaying or exhibiting an outer portion of material, that the material is:

(a)        in a sealed opaque wrapper that covers at least the lower 2/3 of the material so that the lower 2/3 of the material is concealed from view;

(b)        placed behind a blinder rack; or

(c)        displayed in an area from which a minor is physically excluded if the material cannot be viewed by the minor from an area in which a minor is allowed.

Utah Code § 32B-1-504.  General requirements on attire and conduct.

The following attire and conduct on premises or at an event regulated by the commission under this title are considered contrary to the public health, peace, safety, welfare, and morals, and are prohibited:

(1)        employing or using a person in the sale, offer for sale, or furnishing of an alcoholic product while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(2)        employing or using the services of a person to mingle with patrons while the person is in:

(a)        a state of nudity;

(b)        a state of seminudity; or

(c)        performance attire or clothing that exposes to view any portion of:

(i)         the female breast below the top of the areola; or

(ii)        the cleft of the buttocks;

(3)        encouraging or permitting a person to:

(a)        engage in or simulate an act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law; or

(b)        touch, caress, or fondle the breast, buttocks, anus, or genitals of any other person;

(4)        permitting a person to wear or use a device or covering that:

(a)        is exposed to view; and

(b)        simulates all or any portion of the human genitals, anus, pubic area, or female breast;

(5)        permitting a person to use an artificial device or inanimate object to depict an act prohibited by this section;

(6)        permitting a person to remain on premises or at an event who exposes to public view any portion of that person’s:

(a)        genitals, pubic area, or anus; or

(b)        in the case of a female, the areola and nipple of the breast; or

(7)        showing a film, still picture, electronic reproduction, or other visual reproduction depicting:

(a)        an act or simulated act of:

(i)         sexual intercourse;

(ii)        masturbation;

(iii)       sodomy;

(iv)       bestiality;

(v)        oral copulation;

(vi)       flagellation; or

(vii)      a sexual act that is prohibited by Utah law;

(b)        a person being touched, caressed, or fondled on the breast, buttocks, anus, or genitals;

(c)        a scene wherein an artificial device or inanimate object is employed to depict, or a drawing is employed to portray, an act prohibited by this section; or

(d)       a scene wherein a person displays the genitals or anus.

Utah Code § 76-5b-203.  Distribution of an intimate image — Penalty.

(1)        As used in this section:

(a)        “Distribute” means selling, exhibiting, displaying, wholesaling, retailing, providing, giving, granting admission to, providing access to, or otherwise transferring or presenting an image to another individual, with or without consideration.

(b)        “Intimate image” means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts:

(i)         exposed human male or female genitals or pubic area, with less than an opaque covering;

(ii)        a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola; or

(iii)       the individual engaged in any sexually explicit conduct.

(c)        “Sexually explicit conduct” means actual or simulated:

(i)         sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;

(ii)        masturbation;

(iii)       bestiality;

(iv)       sadistic or masochistic activities;

(v)        exhibition of the genitals, pubic region, buttocks, or female breast of any individual;

(vi)       visual depiction of nudity or partial nudity;

(vii)      fondling or touching of the genitals, pubic region, buttocks, or female breast; or

(viii)     explicit representation of the defecation or urination functions.

(d)       “Simulated sexually explicit conduct” means a feigned or pretended act of sexually explicit conduct that duplicates, within the perception of an average person, the appearance of an actual act of sexually explicit conduct.

(2)        An actor commits the offense of distribution of intimate images if the actor, with the intent to cause emotional distress or harm, knowingly or intentionally distributes to any third party any intimate image of an individual who is 18 years of age or older, if:

(a)        the actor knows that the depicted individual has not given consent to the actor to distribute the intimate image;

(b)        the intimate image was created by or provided to the actor under circumstances in which the individual has a reasonable expectation of privacy; and

(c)        actual emotional distress or harm is caused to the person as a result of the distribution under this section.

(3)        This section does not apply to:

(a)

(i)         lawful practices of law enforcement agencies;

(ii)        prosecutorial agency functions;

(iii)       the reporting of a criminal offense;

(iv)       court proceedings or any other judicial proceeding; or

(v)        lawful and generally accepted medical practices and procedures;

(b)        an intimate image if the individual portrayed in the image voluntarily allows public exposure of the image; or

(c)        an intimate image that is portrayed in a lawful commercial setting.

(4)

(a)        This section does not apply to an Internet service provider or interactive computer service, as defined in 47 U.S.C. Sec. 230(f)(2), a provider of an electronic communications service as defined in 18 U.S.C. Sec. 2510, a telecommunications service, information service, or mobile service as defined in 47 U.S.C. Sec. 153, including a commercial mobile service as defined in 47 U.S.C. Sec. 332(d), or a cable operator as defined in 47 U.S.C. Sec. 522, if:

(i)         the distribution of an intimate image by the Internet service provider occurs only incidentally through the provider’s function of:

(A)       transmitting or routing data from one person to another person; or

(B)       providing a connection between one person and another person;

(ii)        the provider does not intentionally aid or abet in the distribution of the intimate image; and

(iii)       the provider does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute the intimate image.

(b)        This section does not apply to a hosting company, as defined in Section 76-10-1230, if:

(i)         the distribution of an intimate image by the hosting company occurs only incidentally through the hosting company’s function of providing data storage space or data caching to a person;

(ii)        the hosting company does not intentionally engage, aid, or abet in the distribution of the intimate image; and

(iii)       the hosting company does not knowingly receive from or through a person who distributes the intimate image a fee greater than the fee generally charged by the provider, as a specific condition for permitting the person to distribute, store, or cache the intimate image.

(c)        A service provider, as defined in Section 76-10-1230, is not negligent under this section if it complies with Section 76-10-1231.

(5)

(a)        Distribution of an intimate image is a class A misdemeanor except under Subsection (5)(b).

(b)        Distribution of an intimate image is a third degree felony on a second or subsequent conviction for an offense under this section that arises from a separate criminal episode as defined in Section 76-1-401.

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

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