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Category: Common Law Marriage

Do you have a desire to get married or remarried some day?

No matter how hard people try to argue against remarriage (or marriage, for that matter), for all but a very, very few of us the arguments aren’t true. Going through life alone is miserable.

If people didn’t care so much about how devastating a failed relationship was, they wouldn’t talk about it nearly as much as they do.

Everyone knows, deep down, that life is not lived to its fullest without marriage and family. Life’s purposes are not fully met without being a part of a marriage and family. Loving and caring marriage and family, of course (few people will argue that marriage is some kind of duty, regardless of just how dysfunctional or neglectful or abusive it is—there is a reason why we have divorce, after all).

Most people on this thread have acknowledged in one way or another that it’s in our nature to want one companionship of the opposite sex and to raise children together. “Neither is the man without the woman or the woman without the man.” (1 Corinthians 11).

People who have been burned by relationships many times, who were cheated on repeatedly and/or suffered abuse at the hands of a boyfriend or girlfriend or spouse need to know marriage and family are too important to avoid and give up out of fear of being hurt. A life well lived is not without its risks and it’s struggles. Alive will lived is one that confronts and deals with it’s struggles nobly. A good marriage can’t exist without saying “I do” first. It’s worth that leap of faith.

That’s stated, any endeavor as important as marriage cannot be entered into lightly. Not only must you be careful in your choice of spouse, but you must be good spouse material yourself. A husband and wife need to recognize that a marriage is bigger than themselves individually. It may seem like a paradox, but focusing on the good of one’s spouse and family (not pathologically, and not at the expense of your own real needs, of course) is what makes us happiest in a marriage and family.

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

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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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What are marriages that are exempted from marriage license requirements?

What are marriages that are exempted from marriage license requirements?

Technically speaking, the only marriage that could be considered “exempt” from a marriage license requirement (meaning free from the requirement to obtain a marriage license as a condition of marrying) would be a common law marriage (in jurisdictions where common law marriage is still allowed and recognized).

To understand what a common law marriage is, you would need to understand what it is not. A common law marriage is not a “solemnized” marriage. A “solemnized” marriage is a marriage performed according to a formal, official, legally recognized marriage ceremony by one vested with authority by the state to perform marriages.

A common law marriage is a marriage that, unlike a solemnized marriage, which arises upon the completion of the formal, legally recognized wedding ceremony, is recognized by the law retroactively, long after two people have been living together in a conjugal relationship (i.e., living in a relationship like that of a married couple without being formally and legally and lawfully wedded). Not all states in the U.S.A. recognize common law marriage. The state where I practice family law (Utah) does.

Here are the requirements for having a relationship recognized as a common law marriage as they are provided in Utah Code § 30-1-4.5:  A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a couple where both are of legal age, capable of giving consent, legally capable of entering a solemnized marriage, have cohabited, mutually assume marital rights, duties, and obligations, and hold themselves out as and have acquired a uniform and general reputation as spouses. The determination or establishment of a marriage under this section must occur either during the relationship or within one year following the termination of that relationship.

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

https://www.quora.com/What-are-marriages-that-are-exempted-from-marriage-license-requirements/answer/Eric-Johnson-311

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Volk v. Vecchi – 2020 UT App 77 – common law marriage

2020 UT App 77
THE UTAH COURT OF APPEALS
CARMELITA VOLK, Appellee,
v.
JOHN VECCHI, Appellant.
Opinion
No. 20180776-CA
Filed May 14, 2020
Third District Court, West Jordan Department
The Honorable James D. Gardner
No. 154907478
David S. Pace, Attorney for Appellant
Karra J. Porter and Kristen C. Kiburtz, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES KATE APPLEBY and RYAN M. HARRIS concurred.
POHLMAN, Judge:

¶1 John Vecchi and Carmelita Volk entered into a relationship and began living together around 1999, but the two never formally married. After separating in 2015, Volk petitioned for divorce, asserting that the parties had established a common law marriage. The district court agreed. Vecchi appeals, arguing that the court erred because Volk did not establish all the required elements for common law marriage in Utah. He also challenges the court’s alleged failure to order that the parties equally share the costs of a custody evaluation. We affirm.

BACKGROUND[1]

¶2        Volk and Vecchi met in approximately 1996. In 1999, they began dating and moved in together. With the exception of about one year in approximately 2001 or 2002, they lived together in California from 1999 until the summer of 2012, when they moved to Utah.

¶3        During the parties’ time in California, they had two children together. Around the time their first child was born, the parties “specifically agreed” that Volk “would be a stay-at-home mother and [Vecchi] would pursue his career.” To that end, they “agreed to divide up the responsibilities—with [Volk] taking on primary responsibility for the children and household duties,” while Vecchi “provide[d] financially for [Volk] and the kids.” They also agreed to “pool their resources together and share equally in everything that was accumulated (and in debts).”

¶4        As evidence of their agreement, the parties jointly purchased four properties together during their relationship— two in California, one in Illinois, and one in Utah. They were co-borrowers on the loans, held title jointly, and shared in the maintenance of each property. They also maintained “joint checking and savings accounts, joint car loans, and joint credit cards.” Indeed, as Volk later testified at trial, “none of the financial aspects of their lives were handled separately.”

¶5        In early 2012, Vecchi began working for a company in Utah. Because the parties “agreed that their children should remain in California to finish the school year,” Vecchi commuted for approximately six months before the parties and their children moved to Utah in the summer of 2012.

¶6        In late 2014, the parties began experiencing significant difficulties in their relationship, and they separated in March 2015. In November 2015, Volk filed a petition for divorce, seeking, among other things, a declaration of common law marriage, alimony, child support, and equitable division of the couple’s assets. During the proceedings, the court ordered a custody evaluation for the parties’ children. The court required Vecchi to pay for the evaluation but indicated that “[f]inal allocation of this cost, if any, shall be reserved for trial.”

¶7        After a bench trial, the district court concluded that Volk had carried her burden of demonstrating that the parties had established a common law marriage for the time they resided in Utah—approximately thirty months. On that basis, the court ordered, among other things, equitable division of the parties’ assets as well as alimony in Volk’s favor for thirty months, the length of the common law marriage in Utah. The court also determined that it was “fair and equitable” for each party to pay, aside from one exception not relevant to this appeal, “his or her own attorneys’ fees and costs.”

¶8        Vecchi appeals.

ISSUES AND STANDARDS OF REVIEW

¶9        Vecchi raises two main issues on appeal. First, he argues that the district court erred in determining that Volk had shown that the parties established a common law marriage in Utah. Specifically, he argues that the court erred by determining “that the parties had acquired a uniform and general reputation as husband and wife” and that “the parties had consented to a common law marriage contract while residing” in Utah. We review the district court’s interpretation of the common law marriage statute for correctness, Hansen v. Hansen, 958 P.2d 931, 933 (Utah Ct. App. 1998), but we review the court’s findings of fact for clear error and its application of the statute to those findings for abuse of discretion, Clark v. Clark, 2001 UT 44, ¶ 14, 27 P.3d 538.

¶10 Second, Vecchi argues that the district court erred by failing to order that the costs of the custody evaluation be shared equally between the parties. When the issue is preserved, we review the district court’s denial of costs and fees for abuse of discretion. See Penunuri v. Sundance Partners, 2017 UT 54, ¶ 15, 423 P.3d 1150; Leppert v. Leppert, 2009 UT App 10, ¶ 10, 200 P.3d 223; Wilde v. Wilde, 969 P.2d 438, 442 (Utah Ct. App. 1998). However, when, as here, an appellant challenges the adequacy of the district court’s findings for the first time on appeal, we consider the issue waived. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 50–56, 99 P.3d 801; Shuman v. Shuman, 2017 UT App 192, ¶ 2, 406 P.3d 258.

ANALYSIS

I. The District Court’s Common Law Marriage Determination

¶11 As discussed above, the district court determined that Volk proved that the parties established a common law marriage during their time in Utah. Vecchi challenges this determination on two grounds. First, he argues that the court erred when it determined that the parties acquired a uniform and general reputation as being married. Second, he argues that the court erred when it determined that the parties consented to a common law marriage.

¶12 Before 1987, Utah did not recognize common law marriages. Whyte v. Blair, 885 P.2d 791, 793 (Utah 1994). However, in 1987, our legislature enacted Utah Code section 30-1-4.5, which provides the requirements for establishing the validity of a marriage that has not been solemnized. See id. That section sets out five requirements to establish the validity of such a marriage:

A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

Utah Code Ann. § 30-1-4.5(1) (LexisNexis 2019).[2] Additionally, the marriage contract must arise between “two consenting parties.” Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998); see also Whyte, 885 P.2d at 794–95 & n.3 (recognizing that “whether the parties consented to be married is often disputed,” and setting forth evidence that may be used to establish consent). In proving the existence of a common law marriage, “[n]o single factor is determinative,” but each required element must be established by sufficient evidence. Whyte, 885 P.2d at 794; Hansen, 958 P.2d at 935.

¶13 As we explain below, we conclude that Vecchi has not shown that the district court abused its discretion by determining that the parties had acquired a uniform and general reputation as a married couple and that they had consented to a marriage while living in Utah. On this basis, we affirm the district court’s determinations on both points.

A. Uniform and General Reputation

¶14 Vecchi first challenges the district court’s determination that the parties had acquired a uniform and general reputation as husband and wife. See Utah Code Ann. § 30-1-4.5(1)(e). He points to a few witnesses who testified at trial that they were informed (and therefore knew) that the parties were not legally married, and he claims this testimony evidences that the parties enjoyed a “divided” rather than a “uniform and general” reputation as husband and wife.

¶15      It is true that “a partial or divided reputation of marriage is insufficient” to establish that a couple has acquired a “uniform and general reputation as husband and wife,” as required by section 30-1-4.5(1)(e). Rivet v. Hoppie, 2020 UT App 21, ¶ 11, 460 P.3d 1054; see also Hansen, 958 P.2d at 936. For example, “a partial or divided reputation of marriage may be shown when the parties’ closest friends do not consider the parties married and the parties are not consistent in holding themselves out as married to the rest of the world.” Rivet, 2020 UT App 21, ¶ 11 (cleaned up).

¶16 Here, however, the court rejected the notion that the parties’ reputation was divided and concluded that Volk met her burden of showing that they had acquired a “general reputation as husband and wife.” The court found that Volk testified consistently about the fact that she “regularly referred” to Vecchi as her husband, that “she considered them to be married,” and “that she routinely introduced [Vecchi] as her husband to third parties” and otherwise “regularly represented herself as being married.” Volk also testified that both parties “provided documentation and information to third parties, including lenders, reflecting her and [Vecchi] as married” and that they also generally “presented themselves as a married couple.” And the court found that, although Vecchi’s “testimony was inconsistent and contradictory,” Volk’s testimony on these points nevertheless was “supported in large part by [Vecchi’s] testimony.”

¶17 Additionally, the court found that “a number of third-party witnesses called by [Volk] provided consistent and persuasive support for the requirement” that the parties acquired a uniform and general reputation of being husband and wife. For example, the court found that a neighbor had the impression that the parties were married “based on how they held each other out, interacted with each other and socialized with others” and that he “did not observe or hear anything during his acquaintance with [the parties] . . . that made him question whether they were married.” The court also found that several of the parties’ acquaintances from their children’s school similarly held the belief that the parties were married. One witness testified that “in every discernible way she thought [the parties] were a married couple,” while another testified that in her view “there was never a suggestion” in the parties’ behavior that “they were not married.” Yet another testified that the parties “appeared to be a normal married couple” and that the witness observed “nothing” that “suggested otherwise.”

¶18 Vecchi raises no challenge to these findings. See Clark v. Clark, 2001 UT 44, ¶ 16, 27 P.3d 538 (concluding that there was sufficient evidence that a couple had acquired a uniform and general reputation as husband and wife where each party “routinely introduced each other as husband and wife” and “at least two witnesses, including a neighbor and a former daughter-in-law, believed [the couple was] married” based in part on the fact that the couple “acted like a husband and wife would act” (cleaned up)); Hansen, 958 P.2d at 936 (noting that a uniform and general reputation for marriage may be shown by “the understanding among the neighbors and acquaintances with whom the parties associate in their daily life, that they are living together as husband and wife” (quoting People v. Lucero, 747 P.2d 660, 665 (Colo. 1987))). Instead, Vecchi’s entire challenge is based on the testimony of a few witnesses he claims knew that their union had not been solemnized, arguing that the existence of persons who “were specifically informed and aware” of the parties’ legal marital status is fatal to the establishment of this element.

¶19      In this respect, Vecchi points to testimony by a longtime coworker and friend (Friend) from California who testified he knew that the parties had never formally married. He also points to testimony of the human resources vice president of his employer in Utah, who testified that Vecchi informed her of his legal marital status for health insurance purposes and she had to change the company’s health insurance plan to accommodate Vecchi’s relationship status. And he points to testimony of one of Volk’s witnesses (Witness), who said that Volk told her that the parties had never formally married.

¶20 But in crafting section 30-1-4.5, our legislature chose to base this requirement on the couple’s acquisition of a uniform and general reputation for being husband and wife, not on the awareness by a few of the legal status of a couple’s union. See Utah Code Ann. § 30-1-4.5(1)(e); see also Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 17, 374 P.3d 3 (“When we interpret a word within a statute, we first consider its plain meaning. In looking to determine the ordinary meaning of nontechnical terms of a statute, our starting point is the dictionary.” (cleaned up)); Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (stating that “our primary goal” when interpreting statutes “is to evince the true intent and purpose of the Legislature,” which requires that we look to “the plain language of the statute itself” and presume that “the legislature used each term advisedly according to its ordinary and usually accepted meaning” (cleaned up)).

¶21 The plain meaning of the term “reputation” indicates that it does not rise and fall on particular persons’ knowledge. Rather, a reputation is a collective perception or estimation by the public or a community. See Reputation, Dictionary.com, https://www.dictionary.com/browse/reputation [https://perma.cc/YU63-VBPZ] (defining “reputation” as “the estimation in which a person or thing is held, especially by the community or the public generally”); Reputation,           Merriam-Webster.com, https://www.merriam-webster.com/dictionary/ reputation [https://perma.cc/X4GE-ANSG] (defining “reputation” as an “overall quality or character as seen or judged by people in general” and “recognition by other people of some characteristic or ability”).

¶22 Likewise, the plain meaning of the terms “uniform” and “general” do not obviously modify the term “reputation” such that a few persons’ isolated awareness of the legal status of the parties’ relationship, without more, is sufficient to undermine an acquired community perception that the parties are husband and wife. For example, “uniform” is defined as “consistent” and having “always the same form, manner, or degree.” See Uniform, Merriam-Webster.com, https://www.merriam-webster.com/ dictionary/uniform [https://perma.cc/6EEV-EEQS]. In this respect, a couple’s acquired reputation for being married—one created by the couple’s conduct in holding themselves out as such—may be consistent in a community despite some isolated awareness that the couple is not legally married. Likewise, even assuming that isolated instances of awareness alone could affect the parties’ overall reputation for being married, the definition of “general” inherently includes “possible exceptions.” See General, Dictionary.com, https://www.dictionary.com/browse/general [https://perma.cc/8S

CU-Y6HH] (defining “general” as “of, relating to, or true of such persons or things in the main, with possible exceptions; common to most; prevalent; usual” and “considering or dealing with overall characteristics, universal aspects, or important elements, especially without considering all details or specific aspects”).

¶23 As described above, the district court determined that the parties consistently held themselves out, and were also consistently perceived by others, as though they were legally married; the court found that the parties and “a number of third-party witnesses” testified to that end. Vecchi has not shown or explained how, despite the court’s numerous determinations on this issue, the isolated awareness of his legal marital status by a confidant or two affected the collective, community perception and estimation of his relationship with Volk.

¶24 Moreover, Vecchi’s reliance on Friend’s and Witness’s testimonies to make his argument also seems misplaced, given that each also testified to the marriage-like quality of the parties’ relationship. For example, Friend testified that while Vecchi told him he never had a “formal marriage ceremony,” Friend nevertheless viewed the parties’ relationship as exclusive and committed—more than simply a boyfriend-girlfriend relationship—and related that when they worked together in California, it was a joking matter that “even though [Vecchi’s] not married, he acts as if he’s married.” Likewise, Witness testified that both parties referred to each other as husband and wife, and she believed the parties were married based on the parties’ move to Utah with their children and her own observations with respect to the parties’ roles in the relationship. Witness also testified that she did not “think much” of the conversation she had with Volk about the parties’ lack of a marriage ceremony “before or after” the conversation occurred, because Volk “expressed that she felt [the parties] were married” and Witness “didn’t see any difference” in the parties’ relationship.

¶25 In short, Vecchi has not shown that these witnesses’ awareness of the parties’ legal relationship status created a “partial or divided” reputation for being husband and wife. We therefore conclude that the district court did not abuse its discretion by determining that the parties had acquired a uniform and general reputation for being husband and wife while in Utah.

B. Consent

¶26 Vecchi next challenges the district court’s determination that the parties consented to a common law marriage. He points to the fact that Volk allegedly proposed to him twice, including once after moving to Utah, and that he declined both times. He also generally asserts that the parties purposefully declined to formally marry despite being able to do so at any time.

¶27 As explained by our courts, parties to a common law marriage must consent “to the rights and responsibilities that accompany a legally recognized marital relationship.” Hansen, 958 P.2d at 936; see also Whyte, 885 P.2d at 794 (describing the consent required as consent “to be married” and to “assume all marital responsibilities”). While the “best evidence of marital consent is a written agreement . . . by both parties” manifesting the requisite consent, our courts have noted that consent may be established by evidence of certain circumstances in the parties’ relationship, such as “maintenance of joint banking and credit accounts; purchase and joint ownership of property; the [sharing of a spouse’s] surname by the [other spouse] and/or the children of the union; the filing of joint tax returns; speaking of each other in the presence of third parties as being married; and declaring the relationship in documents executed by them while living together, such as deeds, wills, and other formal instruments.” Whyte, 885 P.2d at 794–95; see also Hansen, 958 P.2d at 936.

“[C]onsent also may be established by acquiescence,” as evidenced by “objective words and actions” by one spouse that led the other spouse “to believe that [the first spouse] had consented to marriage.” Whyte, 885 P.2d at 794 n.3.

¶28 Here, although Vecchi points to his alleged refusal to marry Volk while in Utah, he does not acknowledge that Volk “denied that these proposals had ever occurred.” And the court found Volk’s testimony about the parties’ relationship status to be credible, but it found Vecchi’s testimony about it to be “inconsistent and contradictory.” Thus, the court’s determination that Vecchi consented to the rights and responsibilities of a marital relationship is not undermined by Vecchi’s alleged rejections of Volk’s proposals to marry because there is no finding that they ever occurred.

¶29      Vecchi also does not challenge or otherwise deal with the numerous determinations the court made on the issue of the parties’ consent while in Utah. See Gines v. Edwards, 2017 UT App 47, ¶ 31, 397 P.3d 612 (explaining that an appellant must “engage with the bases” of the district court’s determinations to carry his or her burden of persuasion on appeal); Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (same); see also State v. Gibson, 2016 UT App 15, ¶¶ 10–11, 366 P.3d 876 (declining to reach the merits of the appellant’s challenge where he failed “to adequately identify and engage with the evidence supporting the trial court’s decision”).

¶30 For example, tracking the consent indicia identified in Whyte, the court found that the “parties cohabitated for over 16 years, including years in Utah,” and that during that time they “maintained joint bank accounts,” “had joint credit accounts and car loans,” “purchased and had joint ownership of four (4) parcels of real property,” and “prepared and filed their tax returns together.” The court also found that the parties “described themselves as husband and wife, or married, in the presence of third parties” and “were generally known by persons in the Utah area . . . as a married couple”; that “the children used the surname of both parents”; and that Vecchi “even referred to [Volk’s] parents as the ‘in-laws’ at trial.” Additionally, the court found that “the parties were reflected as married in numerous documents executed . . . while they were living together, including insurance documents, loan documents on real property, and the like.” For these reasons, the court ultimately concluded that the “indicia of common law marriage [were] present” and that “the parties consented to the common law marriage.”

¶31 Because Vecchi does not acknowledge or persuasively deal with the court’s findings on the issue of consent, Vecchi has not shown an abuse of discretion in the court’s determination that the parties consented to a common law marriage. See Gines, 2017 UT App 47, ¶ 31; Gibson, 2016 UT App 15, ¶¶ 10–11.

¶32 In short, Vecchi has not demonstrated that the district court abused its discretion in determining that the parties consented to a common law marriage and acquired a uniform and general reputation as husband and wife. Accordingly, we affirm the district court’s conclusion that Volk “met her burden” of showing that the parties had established a common law marriage in Utah.

II. The District Court’s Costs Decision

¶33 Vecchi also challenges the district court’s failure to order that the parties share equally the costs of the custody evaluation. He characterizes the court’s decision on this point as a complete failure to render a decision on the issue. He also claims that it is only equitable that both parties bear the cost of the evaluation because both parties benefitted from it.

¶34      We are unable to grant the relief Vecchi requests. To begin with, we question Vecchi’s assertion that the district court completely failed to render a decision on the costs issue. In its post-trial orders, the court expressly determined that it was “fair and equitable” for each party to “pay his or her own attorneys’ fees and costs.” On its face, this determination arguably includes the costs of the custody evaluation.

¶35 But to the extent Vecchi believed that the district court failed in not making a specific finding about the custody evaluation costs, it was incumbent on Vecchi to raise the issue in that court. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶¶ 50– 56, 99 P.3d 801 (explaining that a challenge to the adequacy of a district court’s findings must be raised before the district court in the first instance, or the issue will be deemed waived on appeal); Seamons v. Wiser, 2020 UT App 33, ¶¶ 12–14 (rejecting the argument that the district court failed to rule on two specific arguments where the appellant failed to raise the issue before the district court); PC Crane Service, LLC v. McQueen Masonry, Inc., 2012 UT App 61, ¶¶ 46–47, 273 P.3d 396 (concluding that the appellant had waived the issue of the adequacy of the district court’s costs findings where it did not raise it before the district court). He did not do so.

¶36      While Vecchi included the issue of the custody evaluation costs in his proposed findings of fact and conclusions of law, after the court issued its post-trial orders Vecchi would have been alerted to the alleged inadequacy in the court’s findings with respect to the custody evaluation costs. Yet Vecchi has not directed us to any place in the record indicating that he alerted the court at any time following those orders to the alleged inadequacy he asserts on appeal. Nor have we discovered his presentation of the issue to the district court in our review. Accordingly, he has waived this issue for appeal, and we will not consider the issue further. See PC Crane, 2012 UT App 61, ¶¶ 46–47.

CONCLUSION

¶37 We conclude that Vecchi has not demonstrated that the district court abused its discretion in determining that the parties entered into a common law marriage in Utah. We also conclude that Vecchi has waived his argument with respect to the custody evaluation’s costs. For these reasons, we affirm.

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

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[1] “On appeal from a bench trial, we view the evidence in a light most favorable to the trial court’s findings, and therefore recite the facts consistent with that standard.” Chesley v. Chesley, 2017 UT App 127, ¶ 2 n.2, 402 P.3d 65 (cleaned up).

[2] Because there have been no material changes to this statute since 2015, we cite the current version for convenience.

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Does a common law marriage automatically apply?

Does a common law marriage automatically apply if a couple is living together for a certain amount of years?

No, at least not in the jurisdiction where I practice divorce and family law (Utah).

Here is what must be proven (or stipulated between the litigating parties) under Utah law to establish a common law marriage (a marriage “not solemnized” means a marriage that is not formally/officially performed by one authorized to perform marriage ceremonies (like a religious leader authorized to perform the religious rite of marriage or judge who is authorized to perform a civil wedding ceremony):

30-1-4.5. Validity of marriage not solemnized.

(1) A marriage which is not solemnized according to this chapter shall be legal and valid if a court or administrative order establishes that it arises out of a contract between a man and a woman who:

(a) are of legal age and capable of giving consent;

(b) are legally capable of entering a solemnized marriage under the provisions of this chapter;

(c) have cohabited;

(d) mutually assume marital rights, duties, and obligations; and

(e) who hold themselves out as and have acquired a uniform and general reputation as husband and wife.

(2) The determination or establishment of a marriage under this section shall occur during the relationship described in Subsection (1), or within one year following the termination of that relationship. Evidence of a marriage recognizable under this section may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.

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

https://www.quora.com/Does-a-common-law-marriage-automatically-apply-if-a-couple-is-living-together-for-a-certain-amount-of-years/answer/Eric-Johnson-311

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2020 UT App 21 – UTAH COURT OF APPEALS – common law marriage

2020 UT App 21 – THE UTAH COURT OF APPEALS

JULIE RIVET, Appellant,
v.
LOUIS HOPPIE, Appellee.

Opinion
No. 20181018-CA
Filed February 13, 2020

First District Court, Logan Department
The Honorable Brian G. Cannell
No. 164100697

Marlin J. Grant, Attorney for Appellant Paul H. Gosnell, Attorney for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.

MORTENSEN, Judge:

¶1 During a years-long relationship, and after four marriage proposals, Julie Rivet and Louis Hoppie never formally married. Toward the end of the relationship, Rivet petitioned the district court to recognize a common-law marriage between her and Hoppie. After three hearings, the district court ruled that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Specifically, the district court concluded that although Rivet met four of the elements required to establish the existence of a common-law marriage, she did not satisfy the final elements requiring the parties to hold themselves out as a married couple and to acquire a uniform and general reputation as husband and wife. We affirm.

BACKGROUND

¶2        Rivet and Hoppie began their relationship in 2009. In September 2015, the parties “ceased cohabitating” but did not officially terminate the relationship until sometime in 2017. In December 2016, Rivet petitioned the district court to recognize the relationship as a common-law marriage.

¶3        During the first evidentiary hearing, Rivet moved to admit two contested exhibits: (1) an affidavit from Rivet’s former attorney concerning statements made by Hoppie in their discussion on how to resolve the petition (Exhibit 2) and (2) a collection of written statements by members of the parties’ community expressing their opinions regarding the parties’ relationship status (Exhibit 10). Hoppie challenged the exhibits as hearsay. Rivet conceded the statements contained in the exhibits were hearsay, but suggested that the hearing was informal and that the statements could be considered. The court asked Rivet’s counsel if there was “something . . . that says I can rely on [the] documents,” explaining that if there was support for their admission, the court would allow it. Rivet did not engage with the court on the question or provide a theory under which the exhibits could be admitted. The court excluded the exhibits as hearsay. Later, during the same hearing, Rivet referenced Exhibit 2 to refresh the recollection of a witness, prompting an objection from Hoppie. The court interjected, “I haven’t received [Exhibit 2] as evidence. . . . [I]t refreshed [the witness’s] recollection.” Rivet then stated she sought to introduce Exhibit 2 only for that purpose, after which the court reiterated, “I’m not going to receive [Exhibit 2] at this stage.” Rivet simply responded, “Okay.” The court further indicated that Rivet’s former attorney could be called to testify at a later hearing. But Rivet never called her former attorney to testify.

¶4        Rivet also sought to introduce Exhibit 10, comprising the responses of several individuals to the query: “In your opinion did Julie Rivet and Lou Hoppie appear to be living together the same as a married couple? And, represent themselves in public and social gatherings as such?” The court responded, “It’s technically hearsay. . . . So I’m not going to receive it . . . . We’ll reserve the issue and allow for those witnesses to be brought before the Court.” Rivet offered no response.

¶5        For the duration of the hearing, the parties presented conflicting evidence concerning the nature of the relationship, including testimony from their friends. At the conclusion of the hearing, Rivet asked whether she needed to call the individuals represented in Exhibit 10 as witnesses. The court responded, “It’s your burden. I’m not going to tell you how to present it to me. . . . You’re going to have to put on your case and live with it.”

¶6        During the second evidentiary hearing, Rivet called only one of the seventeen individuals identified in Exhibit 10 to testify. Additional testimony was offered by Hoppie’s son, Hoppie’s insurance agent, and the parties themselves.

¶7        Also during the second hearing, Rivet twice tried to reference a portion of Exhibit 2. Both times, the court told Rivet it would not admit the exhibit, and the court later explained that its decision to exclude Exhibit 2 was based on rule 408 of the Utah Rules of Evidence, which bars, in some circumstances, the admission of evidence connected with compromise offers and negotiations. Throughout the hearing, the parties presented additional evidence, including tax documents showing Hoppie’s filing status as single during a period of the relationship, bank statements showing the parties maintained separate financial accounts, and insurance documents identifying Hoppie as single and Rivet as married.

¶8        During the third hearing, the court heard additional argument from Rivet and Hoppie and acknowledged receiving a trust document executed by Hoppie referencing Rivet as “beneficiary.” The court then ruled and concluded that Rivet did not prove the elements of a common-law marriage by a preponderance of the evidence. The court later issued a memorandum decision finding that Rivet and Hoppie “cohabitated with one another, and assumed marital rights, duties, and obligations thus establishing the elements of Utah Code Ann. Section 30-1-4.5(1)(a)–(d).” But the court also found that the parties merely “held themselves out as being in a committed relationship . . . . [T]hey did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife as required by Utah Code Ann. Section 30-1-4.5(1)(e).” Accordingly, the court denied Rivet’s requested relief and dismissed her petition. Rivet appeals.

ISSUE AND STANDARD OF REVIEW

¶9        On appeal, Rivet contends that the district court’s “findings were insufficient to support [Hoppie’s] position” that there was no common-law marriage.[1] In substance, Rivet does not contest the adequacy of the court’s findings, but the sufficiency of the evidence supporting some of its findings. Additionally, Rivet’s framing of the issue flips the script. It was Rivet, as the petitioner, who bore the burden of proving the elements of a common-law marriage. See Hansen v. Hansen, 958 P.2d 931, 935 (Utah Ct. App. 1998) (stating that a claimant “must prove each of six different elements to establish” a common-law marriage). “We do not reverse a [district] court’s findings of fact unless they are clearly erroneous.” Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171 (cleaned up). Furthermore, when a party fails to challenge factual findings “we assume that the record supports the findings . . . and proceed to a review of the accuracy of the lower court’s conclusions of law and the application of that law in the case.” Heber City Corp. v. Simpson, 942 P.2d 307, 312 (Utah 1997) (cleaned up); see also Hansen, 958 P.2d at 936–37.

ANALYSIS

¶10 Rivet contends that certain of the court’s findings are clearly erroneous because of how the court weighed the evidence. Although Rivet enumerates several findings as clearly erroneous, she substantively challenges only a few of those. See Hahn v. Hahn, 2018 UT App 135, ¶ 20, 427 P.3d 1195 (declining to address inadequately briefed issues under rule 24(a)(8) of the Utah Rules of Appellate Procedure). Consequently, Rivet fails to adequately challenge pertinent findings that independently support the district court’s conclusion that Rivet failed to establish the final elements of a common-law marriage: that the parties “hold themselves out as and have acquired a uniform and general reputation as husband and wife.” Utah Code Ann. § 30-1-4.5(1)(e) (LexisNexis 2019).[2]

¶11 This court has indicated that a partial or divided reputation of marriage is insufficient to meet the requirements of section 30-1-4.5(1)(e). See Hansen v. Hansen, 958 P.2d 931, 936 (Utah Ct. App. 1998). A partial or divided reputation of marriage may be shown when “the parties’ closest friends [do] not consider the [parties] married” and the parties are “not consistent in holding themselves out as married to the rest of the world.” Id. Such circumstances “negate[] the establishment . . . of the statutory requirement that the couple acquire[] a uniform and general reputation as husband and wife.” Id. (cleaned up).

¶12 The district court made unchallenged findings that negated the establishment of section 30-1-4.5(1)(e). In particular, the court found the following:

  1. During the course of the relationship the parties held themselves out as being in a committed relationship, however, they did not hold themselves out as husband and wife, nor did they acquire a uniform or general reputation as husband and wife . . . .

. . . .

  1. . . . [Rivet’s witness] also stated . . . that neither party wore wedding rings . . . and that the parties never referred to each other as “husband” or “wife” but instead referred to each other by the first names. . . . [The witness] while testifying . . . claimed that they held themselves out as husband and wife. However, when pressed for examples of the parties holding themselves out as a married couple he could provide none, and admitted that his belief they were married was based merely on an assumption.
  2. [Hoppie’s] witnesses each testified that they knew the parties were not married . . . [and n]ever observed either party refer to themselves as “husband,” “wife,” or “spouse.”
  3. [Another witness] testified that [Hoppie] never requested changing his status to married . . . or listing [Rivet] as a spouse. . . . [H]e did not believe [Hoppie] had a reputation of being a married individual. . . . [H]e did not believe the parties were married because of discussions they had with him in his office, and . . . [Hoppie] was always opposed to bringing [Rivet] onto other legal documents or referring to her as a spouse.

¶13 The unchallenged findings indicate at least some of the parties’ friends and family did not consider them to be married and the parties did not consistently represent themselves to be husband and wife. Those facts negate the establishment of the statutory requirements under Hansen. Accordingly, the unchallenged findings adequately support the district court’s conclusion that Rivet “failed to establish a common-law marriage under Utah Code Ann. Section 30-1-4.5.” Therefore, the district court accurately applied the law in denying Rivet’s petition.

CONCLUSION

¶14 The district court correctly concluded that Rivet failed to establish a common-law marriage in light of its findings indicating that the parties did not hold themselves out as, and did not acquire a uniform and general reputation as, husband and wife. We therefore affirm the district court’s dismissal of the petition.[3]

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

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[1] Rivet also contends that the court erred by not admitting Exhibits 2 and 10 into evidence, arguing that they were admissible under four separate rules of evidence. We decline to address the argument because Rivet did not preserve these issues. While Rivet offered Exhibits 2 and 10, she provided no justification for their admission, much less the four legal theories she presents for the first time on appeal. See State v. Johnson, 2017 UT 76, ¶ 15, 416 P.3d 443 (“When a party fails to raise and argue an issue in the [district] court, it has failed to preserve the issue . . . .”). We also decline to review Rivet’s appeal of the district court’s exclusion of Exhibit 2 because Rivet does not challenge the court’s alternative basis for its decision under rule 408 of the Utah Rules of Evidence. And when an appellant “fails to challenge the [district] court’s alternative basis for its decision,” the reviewing court generally may not consider the issue sua sponte. Deseret First Fed. Credit Union v. Parkin, 2014 UT App 267, ¶ 13, 339 P.3d 471 (citing Allen v. Friel, 2008 UT 56, ¶ 7, 194 P.3d 903).

[2] The statutory provision in effect at the relevant time does not differ in any material way from the current provision. We therefore cite the current version of the Utah Code for the reader’s convenience.

[3] Hoppie seeks attorney fees incurred on appeal under rule 33 of the Utah Rules of Appellate Procedure, arguing that Rivet’s appeal is frivolous “[g]iven the findings in Hansen v. Hansen, . . . and the clear record supporting the trial court’s findings.” Rule 33 permits an award of damages, including attorney fees, for appeals “not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Utah R. App. P. 33(b). “The sanction for bringing a frivolous appeal is applied only in egregious cases, lest there be an improper chilling of the right to appeal erroneous lower court decisions.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 36, 440 P.3d 757 (cleaned up). While Rivet’s arguments are ultimately unpersuasive, they were not so egregious as to warrant an imposition of rule 33 sanctions. We therefore decline to award Hoppie attorney fees.

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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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