Maybruch, C., Weissman, S., & Pirutinsky, S. (2017). Marital outcomes and consideration of divorce among Orthodox Jews after signing a religious prenuptial agreement to facilitate future divorce. Journal of Divorce & Remarriage, 58(4), 276–287. https://doi.org/10.1080/10502556.2017.1301152
Abstract
This study examined marital satisfaction, marital adjustment, and consideration of divorce among Orthodox Jews in North America (N = 2,652). These marital outcomes were compared for individuals who signed or did not sign a religious prenuptial agreement that facilitates a woman’s future ability to receive a religious divorce from her husband. Results indicated a higher level of marital satisfaction among those who signed the religious prenuptial agreement, and no significant difference in marital adjustment or tendency to consider divorce between groups of individuals who signed or did not sign the religious prenuptial agreement. (PsycINFO Database Record (c) 2017 APA, all rights reserved)
This paper did not address the question of whether prenuptial agreements lead to divorce, but, among the other subject it touches, “discusses two major explanations for the paucity of prenuptial agreements: underestimation of the value of prenuptial agreements, especially due to false optimism that marriages will last; and a belief that discussing prenuptial agreements would signal uncertainty about marriage.”
In the event of divorce – statistically, the reality for nearly half the marriages in America – a prenuptial agreement has the potential to save the divorcing couple anguish, arguments, and thousands of dollars. It may represent an exit agreement far closer to their wishes than the court-ordered divorce. A good prenuptial agreement can even exert a positive force on a healthy marriage.
Fear and Loathing in Marriage: The Psychological and Financial Destruction Caused by Prenuptial Author: Anne Cominsky Mentor: Kurt Meyer, Professor of English, Irvine Valley College Historically, prenuptial agreements as a condition of saying “I do” were sought out by the economically stronger partner as financial protection from divorce. Currently, legal experts and financial advisors agree the general use of prenuptial agreements is on the rise. A random poll suggests that over half of the general public view prenuptial agreements favorably.
If you’re thinking about a prenup, or — worse yet — your intended is pushing a prenup on you, you might as well go ahead and just cancel the wedding. There’s an easier way to keep your assets and income separate: it’s called cohabitation. In most states, cohabiting partners are free to walk away from their relationship with their income and assets intact, all without the hassle and expense of a divorce. There’s an easier way to keep your assets and income separate: it’s called cohabitation. But if you’re truly in love, and you wish to share your life, your body, your children and your checkbook with your beloved “till death do you part,” marriage is generally the ticket. Marriage is about establishing a common life together, about putting someone else ahead of yourself, and sharing the things that mean the most to you, including your money. And, paradoxically, if you take this other-centered approach to marriage, you’re not only less likely to divorce, but also to enjoy a happier relationship. My research suggests that couples who embrace a generous orientation toward their marriage, as well as those who take a dim view of divorce, are significantly more likely to be happy in their marriages. A National Center for Family and Marriage Research study finds that couples who share joint bank accounts are less likely to get divorced. In fact, married couples who do not pool their income are 145 percent more likely to end up in divorce court, compared to couples who share a bank account. So, the kind of partners who wish to hold something back from their spouse in a marriage — emotionally, practically and financially — and to look out for No. 1 instead are more likely to end up unhappy and divorced. If that is your aim in marrying, go ahead and get a prenup. But if you wish to experience the best that marriage has to offer, find a partner who is willing to give everything to you, and do the same for them. Your odds of finding wedded bliss will be higher than your peers with prenups. Join Opinion on Facebook and follow updates on twitter.com/roomfordebate .
5 Prenuptial Pitfalls to Consider — Having One May be Bad for Your Marriage | DivorceNet
For what it’s worth, now that you have some research data: in the course of my cursory research I noticed a distinct bias in the articles that claim that prenuptial and postnuptial agreements do not encourage divorce/discourage marriage. I believe that any intellectually honest person would conclude that for the vast majority of young, unmarried people contemplating marriage for the first time and who aren’t celebrities, or rich or in some other exceptional category contemplating marriage, a prenuptial agreement raises red flags and tends to raise doubts as to the other party’s commitment to marriage.
Pro-prenuptial agreement articles gloss over the red flags. They claim prenuptial agreements “”clear the air, “help break the ice about discussing finances”, and “reduce acrimonious litigation in the event of divorce” rather transparently strain credulity to make those arguments stick.
Special masters and parent coordinators (and co-parenting therapists, co-parent coaches/consultants, and their ilk) were invented for the purpose of unburdening courts from some of the conflict associated with domestic relations litigation. They fail to fulfill their purpose. They do not provide value for the money they charge. The parent(s) end up wasting money on a special master, parent coordinator, etc. while the disputes either persist or get worse (and sometimes it’s the involvement of the special master and parent coordinators who are to blame, either in full or in part). Besides, for most litigants a special master, parent coordinator, etc. is an expense they cannot (or should not) financially bear.
The idea that divorced parents need more than the laws currently on the books, the (lawful) orders in their divorce and child custody decrees, and the sensible use of law enforcement officers when warranted is to infantilize divorced and separated parents.
In the overwhelming majority of cases, anyone trying to sell you on a special master, parent coordinators, co-parenting therapist, co-parent coach, consultants, blah, blah, blah is either someone who offers such “services” and who is trying to sell them to you or a is a court trying to take the dispute out its lap and place it in someone else’s.
rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.
If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.
The divorce trial wasn’t all that newsworthy or memorable (celebrities divorcing is expected), it’s his defamation trial against his ex-wife that is newsworthy. Why?
Although his defamation case is not as relevant to the country as news that affects us all more directly (like economic news), it is highly relevant in the field of divorce and family law because it has brought nationwide attention to a problem we lawyers have known about forever but that others haven’t: the shabby treatment of men in domestic relations law.
As recently as one generation ago, the thought of a man being a domestic violence victim was almost unthinkable. That’s not hyperbole. It was literally almost unthinkable. I’m not suggesting that women didn’t have their own legal prejudices to overcome (they clearly did then and to a lesser extent today, they still do), but it was an open secret that, with rare exception, the law ignored male domestic violence victims.
On second thought, “ignore” is not the most accurate term because that would imply that the law didn’t pay any attention to male domestic violence victims, and that’s not true. It did pay some attention to them, but in the form of arresting, charging, and prosecuting them if they had the guts to speak up.
What makes Johnny Depp’s defamation action against Amber Heard newsworthy today is because it focused the media’s attention (and thus focused the country’s attention) on a serious problem that needs and deserves to be solved now, not solved eventually. Johnny Depp’s defamation action against Amber Heard reveals:
– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend;
– how brazenly a woman can repeatedly commit and get away with physically and emotionally abusing her spouse or boyfriend, while claiming—and by claiming—to be the victim herself; and
– the depth and breadth of institutionalized sexual discrimination that pervades domestic violence laws and their enforcement.
– that it was (and largely still is) that combination of:
1) believing that men generally/realistically can’t be victims of domestic violence at the hands of women; and
2) blaming and prosecuting the man when a man complains of domestic violence that leads so many male domestic violence victims to keep silent (under such circumstances, who can blame them?)
In fact, while men commit more acts of domestic violence that are more severe than those of women, women commit ever so slightly more “intimate partner” (i.e., domestic) physical violence than do men (30.6% women victims, 31% men victims, according to the CDC).
Johnny Depp’s defamation suit against his ex-wife is helping to dispel the myths:
that women don’t commit domestic violence against men;
that there are male domestic violence victims (some people really do find that idea surprising); and
that presuming a woman who claims to be a domestic violence victim must be a victim (i.e., “believe all women”) is ridiculous. “Start by believing” is equally ridiculous. Start by investigating. Presume nothing.
Utah Family Law, LC | divorceutah.com | 801-466-9277
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Todd R. Sheeran, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
TENNEY, Judge:
¶1By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute.
¶2First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario.
¶3Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can.
¶4 Based on these two conclusions, we affirm the modifications at issue.
BACKGROUND [10] The Divorce Decree
¶5Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname.
¶6Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant.
¶7In the portions relevant to this appeal, the Decree provided:
Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.
. . . .
Legal Custody: The parties shall have “joint legal custody” of Daughter.
. . . .
Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:
. . . .
2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . .
3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . .
. . . .
Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).
(Emphases added.)
¶8As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too.
The Modification Petitions
¶9In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son.
¶10In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12
¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13
Motion for Temporary Relief
¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved.
¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.”
¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending.
The Relocation Proceedings
¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.”
¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that
Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years.
The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.”
¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime.
The District Court’s Ruling on Bryant’s Petition to Modify
¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody.
¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were.
¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.”
¶21Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.”
¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.”
¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.”
ISSUES AND STANDARDS OF REVIEW
¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178.
¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”).
ANALYSIS
¶26“While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); 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.” McFarland, 2021 UT App 58, ¶ 25.
¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14
¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.
I. Legal Custody
¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.”
¶30Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15
¶31But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16
¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification.
¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified).
¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach.
¶35Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t.
¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019).
¶37Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal.
¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too.
¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.
II. Physical Custody
¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody.
A. The Nature of the Modification
¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.”
¶42In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019).
¶43Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree.
¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances).
¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36.
¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17
B. The Basis for the District Court’s Change-in-Circumstance
Determination
¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test.
¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”).
¶49Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son.
¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.”
¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son.
C. Standard of Review
¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation.
¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here.
¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference.
¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id.
¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness.
¶57This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified).
¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness.
¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness.
D. The Change in Circumstances
¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18
¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16.
¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”).
¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified).
¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference.
¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant.
¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward.
¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree.
¶68As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change.
¶69Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here.
¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified).
¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions.
¶72Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole.
¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse.
¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840.
¶75Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839.
¶76In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard.
¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver.
¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life.
¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here.
¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances.
¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child.
¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19
CONCLUSION
¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably].
Utah Family Law, LC | divorceutah.com | 801-466-9277
For those following along at home, you are aware that I have posted about judges before. Through the course of my current employment as a legal assistant, much has been learned about judges and their role in the legal system.
In family law, there are clear biases/stereotypes that exist. For example, a man who works full time cannot possibly be expected to comply with a 50/50 custody schedule, let alone be a sole custodian. Or, all a woman needs to do to get sole custody of her children is to claim she or her children have been abused. These biases have been brought to light before and they are not as strong as they used to be, but that is one of the difficult jobs of being a judge. A bias is the one thing that can seal the fate of a innocent party. It is of utmost importance for a judge to strive for impartiality.
How do we make sure that the judges appointed to the bench are genuinely impartial? I don’t know the answer to that question. I have a guess though. If we hold the judges accountable by shining more light (meaning being allowed to record and publicize) family law hearings that would no doubt help a judge think twice about their bias or acknowledge them more readily. More on that next week.
Utah Family Law, LC | divorceutah.com | 801-466-9277
LISA M. MILLER,
Appellant,
v. AMY ELIZABETH DASILVA,
Appellee.
Opinion
No. 20200719-CA
Filed February 3, 2022
Third District Court, Salt Lake Department
The Honorable Robert P. Faust
No. 204904364
Steve S. Christensen and Clinton Brimhall, Attorneys
for Appellant
Amy Elizabeth Dasilva, Appellee Pro Se
JUDGE DIANA HAGEN authored this Opinion, in which JUDGES
GREGORY K. ORME and MICHELE M. CHRISTIANSEN FORSTER concurred.
HAGEN, Judge:
¶1 A final judgment on a petition for a cohabitant abuse protective order cannot be entered based on a commissioner’s recommendation until the parties are afforded their statutory right to object. If a timely objection is filed, the objecting party is entitled to a hearing before the district court. In this case, once the commissioner recommended that the protective order be denied and the case dismissed, a final order was immediately entered and the petitioner’s timely objection was subsequently denied without a hearing. Because a final judgment was entered before the time for filing an objection had passed and without holding a hearing on the objection, we vacate the final judgment and remand to the district court to hold the required hearing.
BACKGROUND
¶2 Lisa Miller petitioned the district court for a cohabitant abuse protective order against her former friend and tenant, Amy Dasilva. A temporary protective order was issued, and a hearing was scheduled before a commissioner. At the conclusion of the hearing, the commissioner made the following findings:
I cannot find that there is sufficient evidence to support a finding that Ms. Da[s]ilva has been stalking Ms. Miller. And I cannot find a fear of ongoing physical harm.[1] And, therefore, I am going to respectfully dismiss the protective order.
A minute entry reflected that the “Commissioner recommends” that the petition “be DENIED and this case be dismissed” because “[t]he evidence does not support the entry of a protective order.”
¶3 That same day, at the direction of a district court judge, the court clerk entered a final order that stated: “This case is dismissed. Any protective orders issued are no longer valid.”
¶4 Miller filed a timely objection to the commissioner’s recommendation, requesting an evidentiary hearing before the district court pursuant to rule 108 of the Utah Rules of Civil Procedure. The next day, the district court denied that objection on the grounds that “dismissal of a protective order . . . is not a matter that is heard by the District Court Judges under Rule 108 as it is not a recommendation of the Commissioner, but rather a final decision.”
¶5 Miller filed a timely notice of appeal.
ISSUE AND STANDARD OF REVIEW
¶6 The dispositive issue before us is whether, under Utah Code section 78B-7-604(1)(f), the district court was permitted to immediately dismiss the case based on the commissioner’s recommendation and thereafter deny Miller’s objection and request for a hearing. “The proper interpretation and application of a statute is a question of law, and we afford no deference to the trial court in reviewing its interpretation.” Patole v. Marksberry, 2014 UT App 131, ¶ 5, 329 P.3d 53 (cleaned up).
ANALYSIS
¶7 Under the Cohabitant Abuse Act, the court may issue a protective order without notice to the other party (an ex parte protective order) if it appears from the petition “that domestic abuse has occurred” or is substantially likely to occur. Utah Code Ann. § 78B-7-603(1)(a) (LexisNexis Supp. 2020). If the court issues an ex parte protective order, it must schedule a hearing and provide notice to the respondent. Id. § 78B-7-604(1)(a). After notice and a hearing, the court may issue a cohabitant abuse protective order, which is effective until further order of the court. Id. § 78B-7-604(1)(e). If such an order is not issued, the ex parte protective order expires unless extended by the court. Id. § 78B-7-604(1)(b).
¶8 A commissioner may conduct the required hearing in cohabitant abuse cases and “[m]ake recommendations to the court.” Utah R. Jud. Admin. 6-401(1)–(2)(D). If the hearing takes place before a commissioner, “either the petitioner or respondent may file an objection within 10 days after the day on which the recommended order [is issued by the commissioner] and the assigned judge shall hold a hearing within 20 days after the day on which the objection is filed.”[2] Utah Code Ann. § 78B-7604(1)(f).
¶9 Here, the district court denied Miller’s objection to the commissioner’s recommendation without holding a hearing. Miller argues this was a “violation of the mandate in Utah Code Ann. § 78B-7-604(1)(f).” We agree.
¶10 In denying Miller’s objection, the court ruled that “dismissal of a protective order” is not a matter that can be heard by the district court under rule 108 because “it is not a recommendation of the commissioner, but rather a final decision.” Because commissioners are prohibited from making “final adjudications,” Utah R. Jud. Admin. 6-401(4)(A), we assume that the district court was referring not to the commissioner’s recommendation, but to the order dismissing the case entered at the direction of a district court judge immediately after the hearing before the commissioner. Even so, the rule expressly provides that “[a] judge’s counter-signature on the commissioner’s recommendation does not affect the review of an objection.” Utah R. Civ. P. 108(a). Once Miller filed a timely objection to the commissioner’s recommendation and a request for hearing, the district court was statutorily required to hold a hearing within twenty days. See Utah Code Ann. § 78B-7-604(1)(f). The district court erred by denying the objection without holding such a hearing.
CONCLUSION
¶11 The district court did not have authority to enter a final order dismissing this case before the time for filing an objection to the commissioner’s recommendation had expired. Because Miller filed a timely objection and request for hearing, she was entitled to a hearing before the district court. Accordingly, we vacate the final judgment, reverse the district court’s order denying the objection, and remand for the district court to hold the hearing required by statute.
NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
Court of Appeals of Utah.
Sara WARD, Appellant, v. Meredith MCGARRY, Appellee.
No. 20200435-CA
Filed May 6, 2021
Third District Court, Salt Lake Department, The Honorable Richard D. McKelvie, No. 134901200
Attorneys and Law Firms
Angilee K. Dakic, Attorney for Appellant
Martin N. Olsen, Midvale, and Beau J. Olsen, Attorneys for Appellee
Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Ryan M. Harris concurred.
Opinion
CHRISTIANSEN FORSTER, Judge:
*1 ¶1 Sara Ward challenges the district court’s final order regarding child support in a paternity action. We reverse and remand for further proceedings.
¶2 Ward and Meredith McGarry have one child together. The two have been involved in a paternity action regarding that child since 2013. Although they have resolved custody issues relating to the child, they were unable to reach a resolution regarding child support.
¶3 The parties’ dispute centers on disagreements regarding the amount of McGarry’s monthly income. McGarry is self-employed and has an ownership interest in at least one company. Ward reports having ongoing difficulties obtaining documentation relating to McGarry’s income, asserting that his disclosures were incomplete and heavily redacted. The parties engaged in settlement negotiations and exchanged rule 68 settlement offers, see Utah R. Civ. P. 68, and in his rule 68 settlement offer, McGarry offered to have income of $30,000 per month imputed to him. But the parties were unable to come to an agreement.
¶4 The parties appeared before a domestic relations commissioner for a hearing on March 11, 2020, to address various non-dispositive motions then pending before the court, including motions for sanctions and a motion to strike. The parties did not anticipate that the substantive issues in the case would be resolved at that time. However, at the hearing, which lasted only a few minutes, the commissioner did not directly address the pending motions; instead, she announced that she was “going to make a recommendation … to wrap this up and resolve” the case and proceeded to impute McGarry’s income “at $30,000 a month going forward for child support purposes” based on McGarry’s “agreement.” Further, the commissioner recommended that McGarry pay $56,000 in child support arrearages and attorney fees, a number calculated by averaging Ward’s request for $60,000 and McGarry’s rule 68 offer of $52,000. The commissioner did not take evidence at the hearing, made no further findings in support of these calculations, and did not distinguish which portion of the lump sum award was attributable to attorney fees as opposed to arrearages. The commissioner’s recommendation took the form of an order captioned “Final Order Re Child Support.”
¶5 Ward objected to the commissioner’s recommendation, asserting that the commissioner “failed to make requisite findings that would support the order” and erred by relying on McGarry’s rule 68 settlement offer to reach the imputation number rather than calculating that amount based on the evidence. Ward further asserted that the commissioner “made no findings as to how she calculated the child support arrears or attorney fees awarded to” Ward and erred in lumping the arrears and fees together rather than calculating them separately. Ward also claimed that the commissioner’s order, in the absence of an evidentiary hearing, deprived her of her “right to a trial.” The district court countersigned the commissioner’s recommendation, making it the final order of the court, and denied Ward’s objection without holding any further hearing or making any additional findings on the record. Ward now appeals.
*2 ¶6 Ward asserts that the district court erred in approving the commissioner’s recommendation and summarily denying her objection without adequate findings and without a trial or other evidentiary hearing.1 “The ultimate question of whether the trial court strictly complied with … procedural requirements … is a question of law that is reviewed for correctness.” State v. Holland, 921 P.2d 430, 433 (Utah 1996); accord Brigham Young Univ. v. Tremco Consultants, Inc., 2007 UT 17, ¶ 25, 156 P.3d 782. Further, “we review the legal adequacy of findings of fact for correctness as a question of law.” Jacobsen v. Jacobsen, 2011 UT App 161, ¶ 15, 257 P.3d 478 (quotation simplified).
¶7 “In all actions tried upon the facts without a jury …, the court must find the facts specially and state separately its conclusions of law. The findings and conclusions must be made part of the record and may be stated in writing or orally following the close of evidence.” Utah R. Civ. P. 52(a)(1). Moreover, when a party objects to a commissioner’s recommendation, the judge must “make independent findings of fact and conclusions of law based on the evidence.” Id. R. 108(f); see also Day v. Barnes, 2018 UT App 143, ¶ 16, 427 P.3d 1272 (“[R]ule [108] is explicit that the district court’s review is independent on both the evidence and the law.”). A court’s findings must “contain sufficient detail to permit appellate review to ensure that the district court’s discretionary determination was rationally based.” Fish v. Fish, 2016 UT App 125, ¶ 22, 379 P.3d 882.
¶8 In this case, the district court did not make any independent findings of fact or conclusions of law, as required by rule 108 of the Utah Rules of Civil Procedure.2 McGarry urges us to construe the court’s signing of the commissioner’s recommendation and summary denial of Ward’s objection as an implicit adoption of the same findings and conclusions entered by the commissioner. However, nothing in the record supports such an assumption.3
¶9 In any event, the commissioner’s findings are inadequate to support her legal conclusions. The commissioner made a single finding in support of her recommendation: “The parties have had extensive, ongoing litigation for the past seven (7) years and a conclusion of this matter is critical for the parties and the minor child.” This finding does not address any of the evidence pertaining to McGarry’s income, the arrearages owed, or the attorney fees incurred by Ward. Rather than receiving and examining any evidence and reaching legal conclusions based on that evidence, the commissioner imputed income based solely on McGarry’s rule 68 settlement offer, which was never accepted.4See generally Utah Code Ann. § 78B-12-203(8)(b) (LexisNexis 2018) (outlining the factors a court must consider in calculating the appropriate amount of income to impute to a parent). The commissioner’s recommendation regarding child support arrearages and attorney fees was likewise unsupported by any evidence. Rather than examining the actual numbers and making findings regarding the amount owed, the commissioner simply split the difference between the two parties’ claimed numbers in their rule 68 settlement offers. Such findings would not adequately support the court’s decision even if we could somehow construe them as independent.
*3 ¶10 The overarching problem in this case—and the ultimate source of the inadequacy and insufficiency of the court’s findings—is that no judicial officer ever took evidence or held a hearing on the contested child support issues. Unless the matter in question can be resolved summarily (for instance, by summary judgment pursuant to rule 56 of the Utah Rules of Civil Procedure), parties have a right to their “day in court,” in which they have the opportunity to testify and present evidence regarding the relevant issues. See Utah Const. art. I, § 11 (“All courts shall be open, and every person, for an injury done to the person in his or her person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, with or without counsel, any civil cause to which the person is a party.”); Miller v. USAA Cas. Ins. Co., 2002 UT 6, ¶ 38, 44 P.3d 663 (“Parties to a suit, subject to all valid claims and defenses, are constitutionally entitled to litigate any justiciable controversy between them, i.e., they are entitled to their day in court.”).
¶11 At some level, we understand the commissioner’s frustration with parties who had litigated for several years over positions that were perhaps not all that far apart. But concerns regarding judicial efficiency alone cannot justify depriving parties of their day in court. The contested child support issues in this case needed to be resolved, if not through negotiation or summary resolution, then through a trial at which evidence was presented. The commissioner’s and the district court’s actions to short-circuit that process here were improper.
¶12 Because the district court did not take evidence and make “independent findings of fact and conclusions of law based on the evidence,” see Utah R. Civ. P. 108(f), in resolving Ward’s objection, we must reverse the order and remand for further proceedings.
———————————
1 Ward also raises arguments regarding the inadequacy of McGarry’s disclosures. However, she does not identify any particular errors the court made with respect to discovery issues, and we are therefore unable to review her arguments on this point. In any event, as we are reversing the district court’s child support order, Ward will have the opportunity to raise any ongoing issues with respect to discovery on remand.
2 We are also concerned about the court’s refusal to grant Ward a hearing when requested. See generally Utah R. Civ. P. 108(d)(3) (“If the hearing before the commissioner was in a domestic relations matter other than a cohabitant abuse protective order, any party has the right, upon request … to a hearing at which the judge may require testimony or proffers of testimony on genuine issues of material fact relevant to issues other than custody.”).
3If the commissioner had taken evidence and if the district court, after reviewing that evidence, had expressly adopted the commissioner’s findings as its own, then it might be possible to construe those findings as independent findings mirroring those of the commissioner. But that is not what occurred in this case.
4 The commissioner relied on McGarry’s rule 68 settlement offer to calculate the $30,000 imputation amount, but Ward never agreed to this amount. “Income may not be imputed to a parent unless the parent stipulates to the amount imputed, the parent defaults, or, in contested cases, a hearing is held and the judge … enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(8)(a) (LexisNexis 2018). McGarry asserts that we should construe this provision as permitting a court to impute income to a parent based on that parent’s unilateral stipulation to the amount imputed. However, McGarry’s interpretation is inconsistent with the language of the statute and would also lead to an absurd result.
First, nothing in the statute requires the court to impute income based on the imputed parent’s stipulation. It simply states that the court cannot impute income “unless the parent stipulates” or other conditions are met. Id. And in fact, the statute explicitly states that “in contested cases,” the imputation requires a hearing and factual findings entered by the judge in support of the imputation. Id. Here, Ward maintained that McGarry’s income was greater than $30,000 per month. The appropriate amount of McGarry’s income was therefore contested, requiring the court to calculate the appropriate amount after a hearing if the parties could not reach an agreement.
Moreover, even if the statute was ambiguous and McGarry’s interpretation was consistent with the plain language of the statute, his reading would lead to an absurd result, as it would essentially require the court to impute income at whatever level the party being imputed requests. See, e.g., Encon Utah, LLC v. Fluor Ames Kraemer, LLC, 2009 UT 7, ¶ 73, 210 P.3d 263 (“When statutory language plausibly presents the court with two alternative readings, we prefer the reading that avoids absurd results.” (quotation simplified)). Interpreting the statute in this way could have a significant negative impact on the right children have to be supported by their parents—a right that we have consistently held “is not subject to being bartered away, extinguished, estopped or in any way defeated by the agreement or conduct of the parents.” Hills v. Hills, 638 P.2d 516, 517 (Utah 1981); accord Andrus v. Andrus, 2007 UT App 291, ¶ 14, 169 P.3d 754.
In my personal experience, most of the time, with most judges. I’m a divorce and family lawyer in Utah, and family law gives judges such broad discretion that even those to whom their broad discretion has not gone to their heads have the opportunity to decide cases consisting of the same kinds of facts and circumstances in significantly and substantially different ways (fun fact: with the exception of Georgia and Texas, divorce cases are not permitted to be tried to a jury, only to the judge).
It’s an opportunity of which most judges especially avail themselves in divorce and family law cases. This makes it very hard to predict for a client what kind of decision to expect from a judge regarding certain divorce issues. Consequently, reading tea leaves on many issues are what divorce and family lawyers do regularly and frequently.
Yes, in my experience, there are aspects of the legal system and the practice of law that some lawyers and judges see and treat as a game. You see lawyers and judges who observe, regularly that “that lawyer/that judge did this to cause delays/burden or inconvenience the opposing party and not for the stated pretextual reason offered for doing it.”
Many bad lawyers file frivolous lawsuits and motions for fun and profit. That’s no secret.
I was shocked as a young lawyer (I’m not shocked anymore) when a lawyer who represented the losing side of a case called me up and threatened to file a meritless appeal. When I got upset with him about it he responded with, “Hey, calm down. Even if I lose, we’ll both still get paid.”
And many lawyers and litigants have experienced a judge violating the law and/or rules knowing that he/she can get away with it because the victimized litigant can’t afford to appeal the judge’s decision or complain about his/her decision for fear of retaliation. Yes, it happens. Not with all attorneys and judges, but with many.
I’ve been prompted recently to express my thoughts and opinions about the judiciary generally in the family law context. Here are a few thoughts I feel are worth sharing:
– Too often litigants and attorneys are afraid to present certain arguments and evidence and proposals for fear that merely raising fair-game topics, much less trying to advance them within the bounds of the law and procedure, will anger and/or offend the court to their detriment.
– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about subjectively picking winners and losers.
– Judges and commissioners deciding family law cases must be far more about the law and the facts dictating their decisions and much less about indulging personal biases and subjectively picking winners and losers.
– Judges and commissioners rely on/pass the buck to GALs and custody evaluators far, far too much instead of interviewing children themselves and/or permitting children to testify. Just because this can be said of every district court* (as opposed to juvenile court) in Utah does not make universal failure/refusal right.
*If there is a judge or commissioner in Utah who will/does interview children in child custody cases to avoid the obscene expense, delays, and lack of record suffered by imposing a GAL or custody evaluator on the parties and children, I do not know of any such judge or commissioner. I get told frequently by many judges and commissioners who refuse to interview children something along the lines of, “I am not afraid/unwilling to interview children, I just [insert pretextual/lame excuse here],” and there are many judges and commissioners who tell me that it is their personal policy not to interview children under virtually any and all circumstances.
There are judges and commissioners everywhere, not just Utah, who act a law unto themselves. Always? No. But any time is too often, and there are times when I’ve witnessed this more times than can be written off to mere honest mistakes. Whether a judge or commissioner knowingly acts this way, ignorantly acts this way, or both, it is inexcusable.
The elephant in the room is this: if there is no gender bias/sexual discrimination that is preventing fit, able, worthy fathers from being awarded joint equal physical custody, then why A) did so many people (not only a huge number of men, but women who sympathize with these men and with the plight of men in child custody disputes generally) and B) the overwhelming majority of Utah legislators pass a law to address and, it is hoped, eliminate that bias.
If you are a parent (particularly a father) who is worried about having child custody or parent time reduced to minimal levels in your divorce or other kind of child custody case, then for the sake of your children and your relationship with them, you need to know what S. B. 122 means for you and your children.
What will S.B. 122’s passage into law do? It will make it easier to make a case for an award of joint equal physical custody of children. Again, this is especially important to fathers who have historically faced a strong culture of bias and prejudice in the legal system.
Finally! But all is not total sunshine and roses—read on to learn why.
Bottom line: This new joint equal custody option is better than what we had in the past and should make it easier to win a joint equal custody award, but we’re still going to run into parents and commissioners and judges who simply cannot accept the idea of joint equal physical custody. So get your hands on as much proof (proof, as opposed to mere evidence; meaning: objective, independently verifiable facts) as you possibly can to satisfy § 30-3-35.2 factors if you hope to get joint equal physical custody awarded.
S.B. 122:
amends Utah Code § 30-3-34 to provide for a new “parent-time” schedule option that, if implemented, would result in the children spending equal periods of time annually with each parent.
creates a new code section, § 30-3-35.2, which, if the court orders its application in a child custody case, would result in the parents sharing overnights with the children equally on an annual basis.
Amends § 78B-12-208 to provide for how child support is calculated under a § 30-3-35.2 equal custody schedule.
Portions of the changes S.B. 122 bring to the child custody scene are highlighted (in some cases “lowlighted”) in red text because they are important to know about.
NEWLY CREATED § 30-3-35.2 READS AS FOLLOWS:
30-3-35.2.Equal parent-time schedule.
(1) (a) A court may order the equal parent-time schedule described in this section if the court determines that:
(i) the equal parent-time schedule is in the child’s best interest; (ii) each parent has been actively involved in the child’s life; and
(iii) each parent can effectively facilitate the equal parent-time schedule.
(b) To determine whether each parent has been actively involved in the child’s life, the court shall consider: (i) each parent’s demonstrated responsibility in caring for the child; (ii) each parent’s involvement in child care; (iii) each parent’s presence or volunteer efforts in the child’s school and at extracurricular activities;
(iv) each parent’s assistance with the child’s homework;
(v) each parent’s involvement in preparation of meals, bath time, and bedtime for the child;
(vi) each parent’s bond with the child; and
(vii) any other factor the court considers relevant.
(c) To determine whether each parent can effectively facilitate the equal parent-time schedule, the court shall consider:
(i) the geographic distance between the residence of each parent and the distance between each residence and the child’s school; (ii) each parent’s ability to assist with the child’s after school care;
(iii) the health of the child and each parent, consistent with Subsection 30-3-10(6); (iv) the flexibility of each parent’s employment or other schedule; (v) each parent’s ability to provide appropriate playtime with the child; (vi) each parent’s history and ability to implement a flexible schedule for the child; (vii) physical facilities of each parent’s residence; and
(viii) any other factor the court considers relevant.
(2) (a) If the parties agree to or the court orders the equal parent-time schedule described in this section, a parenting plan in accordance with Sections 30-3-10.7 through 30-3-10.10 shall be filed with an order incorporating the equal parent-time schedule.
(b) An order under this section shall result in 182 overnights per year for one parent, and 183 overnights per year for the other parent.
(c) Under the equal parent-time schedule, neither parent is considered to have the child the majority of the time for the purposes of Subsection 30-3-10.3(4) or 30-3-10.9(5)(c)(ii).
(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).
(3) (a) Unless the parents agree otherwise and subject to a holiday, the equal parent-time schedule is as follows:
(i) one parent shall exercise parent time starting Monday morning and ending Wednesday morning;
(ii) the other parent shall exercise parent-time starting Wednesday morning and ending Friday morning; and
(iii) each parent shall alternate weeks exercising parent-time starting Friday morning and ending Monday morning.
(b) The child exchange shall take place:
(i) at the time the child’s school begins; or
(ii) if school is not in session, at 9 a.m.
(4) (a) The parents may create a holiday schedule.
(b) If the parents are unable to create a holiday schedule under Subsection (4)(a), the court shall:
(i) order the holiday schedule described in Section 30-3-35; and
(ii) designate which parent shall exercise parent-time for each holiday described in Section 30-3-35.
(5) (a) Each year, a parent may designate two consecutive weeks to exercise uninterrupted parent-time during the summer when school is not in session.
(b) (i) One parent may make a designation at any time and the other parent may make a designation after May 1.
(ii) A parent shall make a designation at least 30 days before the day on which the designated two-week period beings.
(c) The court shall designate which parent may make the earlier designation described in Subsection (5)(b)(i) for an even numbered year with the other parent allowed to make the earlier designation in an odd numbered year.
(d) The two consecutive weeks described in Subsection (5)(a) take precedence over all holidays except for Mother’s Day and Father’s Day.
THE AMENDMENTS TO § 30-3-34 ARE:
30-3-34.Parent-time — Best interests — Rebuttable presumption.
(1) If the parties are unable to agree on a parent-time schedule, the court may:
(a) establish a parent-time schedule [consistent with the best interests of the child.]; or
(b) order a parent-time schedule described in Section 30-3-35, 30-3-35.1, 30-3-35.2, or30-3-35.5.
(2) The advisory guidelines as provided in Section 30-3-33 and the parent-time
33 schedule as provided in Sections 30-3-35 and 30-3-35.5 shall be [presumed to be in the best interests of the child unless the court determines that Section 30-3-35.1 should apply. The parent-time schedule shall be] considered the minimum parent-time to which the noncustodial parent and the child shall be entitled [unless a parent can establish otherwise by a preponderance of the evidence that more or less parent-time should be awarded based upon one or more of the following criteria:]. (3) A court may consider the following when ordering a parent-time schedule:
(a) whether parent-time would endanger the child’s physical health or mental health, or significantly impair the child’s emotional development;
*****
(5) A court may not order a parent-time schedule unless the court determines by a preponderance of the evidence that the parent-time schedule is in the best interest of the child.
In cases of joint physical custody, the base child support award shall be determined as
follows:
(1) Combine the adjusted gross incomes of the parents and determine the base combined child support obligation using the base combined child support obligation table.
(2) Calculate each parent’s proportionate share of the base combined child support obligation by multiplying the base combined child support obligation by each parent’s percentage of combined adjusted gross income. The amounts so calculated are the base child support obligation due from each parent for support of the children.
(3) (3) [If] Subject to Subsection 30-3-35.2(2)(e)(ii), if the obligor’s time with the children exceeds 110 overnights, the obligation shall be calculated further as follows:
(a) if the amount of time to be spent with the children is between 110 and 131 overnights, multiply the number of overnights over 110 by .0027, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined by Subsection (2) to arrive at the obligor’s payment; or
(b) if the amount of time to be spent with the children is 131 overnights or more, multiply the number of overnights over 130 by .0084, then multiply the result by the base combined child support obligation, and then subtract the result from the obligor’s payment as determined in Subsection (3)(a) to arrive at the obligor’s payment.
Utah Family Law, LC | divorceutah.com | 801-466-9277
To start the divorce process, you must begin by filing what is called a complaint or a petition for divorce with the court. This means you are suing your spouse for a divorce. Don’t let the term “suing” frighten you or your spouse. “To sue” means to institute legal proceedings against your spouse. That’s all.
Then your complaint or petition for divorce is served on (or officially delivered to) your spouse, usually by a law enforcement officer or a private process server. You can also waive personal service by a law enforcement officer or process server and just accept service by signing a simply accepting the documents without the need for personal service.
If you and your spouse agree to the terms of your divorce, also known as an “uncontested divorce,” the issue of “service of process” doesn’t come up because you submit voluntarily to the jurisdiction of the court by signing and filing with the court your divorce settlement agreement and other documents that indicate you recognize you are subject to the to the jurisdiction of the court.
If you’re the one seeking a divorce and the one who filed for divorce, your spouse has 21 days to respond to the complaint for divorce or 30 days to respond if your spouse is served outside of the state of Utah.
The name for the response to a complaint for divorce is an “answer”. If you wish to countersue your spouse for divorce after you get served with a petition or complaint for divorce, you can file an “answer and counterclaim”.
How the case proceeds from this point could take various routes:
At any point during the pendency of the case, as long as the trial has not concluded and the court issued its decree and orders, you and your spouse can reach a settlement agreement.
After the complaint and answer or answer and counterclaim are filed, the parties have to exchange some initial financial information and information about the evidence each party has and what witnesses the parties might call to testify at trial.
Then the parties have 180 days to conduct discovery. The purpose of discovery is to obtain facts and information that will reveal the truth in a matter and help both parties and the court determine what’s truly in dispute and what is not. After discovery closes, then the case is almost ready to take to trial, but not quite.
Before a divorce case can go to trial in Utah the parties must first to go mediation and try to settle the case (if the parties don’t want to go to mediation they can ask the court to waive the mediation requirement “for good cause,” but it’s not easy to get the court to find good cause to waive mediation. Most couples go to mediation, even if they think it won’t work, if for no other reason than to check the “we went to mediation” box, so that they can get to trial.
After discovery closes and mediation is completed, either party can certify the case as read for trial.
Then the court schedules one or more pretrial conferences to prepare for trial, set a trial date, the number of day the trial will take, and other matters.
After trial, the court can take up to 60 days to issue its decision on the case, after which one of the parties’ respective attorneys is ordered to prepare the Decree of Divorce for the court’s signature.
Is it unreasonable to refuse to buy a home in the same town or city that an ex-spouse lives in even though it is an affordable location?
Not if residing in the same town/city in which your ex-spouse resides will prove to be more trouble to you and/or your minor children than its worth. How could that be?
If one of the reasons you divorce your spouse was to reduce or eliminate contact and interaction with your spouse, then living in close proximity to your ex-spouse, and thus increasing the odds of coming into contact/interacting with your ex-spouse would be counterproductive, would defeat at least one main purpose of you seeking divorce.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I recently participated in a hearing before a domestic relations commissioner in which the commissioner refused to interview a child and ordered a guardian ad litem (GAL) appointed, even though 1) the commissioner had the exact same child interview training as what a GAL had and 2) Utah Code § 30-3-10(5)(b)(i) expressly authorizes the judge or commissioner to interview the child. In other words, there was nothing that made the commissioner any less qualified to interview the child than a GAL, but the commissioner refused to interview the child and instead appointed someone else to interview the child and ordered the parties to pay for it. This is the norm in Utah with the overwhelming majority of judges and commissioners assigned to child custody cases in divorce and parentage cases.
So why appoint a GAL? Why not have the court interview the child instead of a GAL? Why incur the costs of having to pay for the appointment of a GAL when the court questioning the child:
is free of charge;
on the record (guardian ad litem interviews are not on the record and not subject to discovery);
does not violate the attorney-client communications privilege;
results in direct testimony from child to court, without any intermediary to taint or misreport or misconstrue what questions the child asked and how the child answered them (as opposed to an interview of which there is no record made of the questions asked—and unasked—and the answers given—or not given—followed by recommendations made on the basis of no independently verifiable position; and
suffers from no “court-sponsored hearsay” problem because the child is questioned directly by and responds directly to the judge or commissioner on the record.
There are even more good reasons for judges and commissioners to interview children directly. Now of course there will be certain cases in which a child is too young or too fragile to justify having a judge or commissioner interview a child, but I have yet to have anyone explain the logic behind the almost wholesale opposition of courts to directly interviewing children. I cannot find any sense in thinking: “I know that I’m authorized by statute to question the child (and that I either have or can quickly get the same interview training a GAL receives), but I won’t question the child and instead I will have someone else do it, charge the parties to do it, ensure that the questioning (if it takes place at all) is not on the record, have the appointed questioner make recommendations without there being any way to verify whether there is a factual foundation for the recommendations, and I’ll justify all of this by claiming this is in the best interest of the child by claiming (without evidence because there can be no evidence) that somehow a GAL questioning a child does no harm but a judge or commissioner (who the child would not be able to distinguish from a GAL) questioning a child is somehow almost sure to cause a child harm.”
If anyone reading this honestly asserts that appointing a GAL is better than having the child questioned by the court on the record, please explain how, in any substantive way, appointing a GAL is better than having the child questioned by the court on the record.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How many states favor giving the child to its mother in a custody hearing?
You’re asking a good question, but it’s not the question you think you’re asking.
The question is not whether a particular “state” favors awarding custody of children to mothers over fathers, but whether particular judges favor awarding custody of children to mothers over fathers.
First, we need to understand a few things about the way the law governing the award of child custody has evolved.
I am not aware of any state in the United States with a law that expressly discriminates against men for child custody purposes; if any such law existed, it would likely be challenged and easily struck down as sexually discriminatory and thus unconstitutional. There may still be a few states with laws on the books that surreptitiously favor mothers over fathers. By employing language and stating tests and elements that favor to women and mothers over men and fathers without overt references to men or women, such laws still manage to discriminate in favor of mothers over fathers without appearing to be indulging in blatant sexual discrimination. A good example of this in my jurisdiction (Utah) is favoring the “primary caregiver” of the child. Many judges simply presume that a child’s primary caregiver is its mother, particularly when the child is an infant or very young, even if there is insufficient evidence or even no evidence to support such a presumption.
And that’s a good segue into the next topic of this discussion. When it comes to child custody, laws are usually not your biggest impediment to a fair child custody award. While it is true that in the past there were child custody laws that were blatantly and grossly discriminatory against men and fathers, those laws are disappearing fast (thank goodness). Now the problem lies primarily not in the law but in those who administer the law: the judges.
Many of the current/outgoing generation of judges came from nuclear families (i.e., a family consisting of a married mother and father of their children) in which the mother seldom worked outside the home, if at all. In families like these, it was clear that the mother usually did, in the majority of divorce cases involving such families, the majority of the child care taking. Reasonable arguments could be made in these circumstances for why the mother would be awarded primary physical custody of the couple’s children. Many of these judges have so many cultural biases in favor of awarding custody of children to mothers that they are incapable of even conceiving of the idea of a father being awarded primary custody or even having both parents share physical custody of their children equally. Not all of the current generation of judges are this way, but many are.
But the new/incoming generation of judges are as likely to be children of divorce as to have come from a traditional nuclear family, and many of the current generation of judges also have children who have divorced. These judges remember how awful it felt to be limited to time with their fathers on alternating weekends and holidays. These judges see their own adult divorce children no longer treated as co-equal parents and instead being marginalized as “visitors” of their own children. Many of these judges are far more sympathetic to men and fathers than the previous generation of judges are and have been. Not all of the new generation of judges are this way, but many are, and their ranks are growing.
So if you have a judge who is over the age of 60 years, and you are a fit and loving father who wants to be as involved in your children’s lives as you want their mother to be, odds are you have an uphill battle before you. If it becomes clear that your judge is culturally biased and/or discriminates on the basis of sex, you need to expose this on the record, and you need to acquire and present so much evidence showing your parental fitness and that the best interest of the children benefit from joint custody that it leaves the judge no other rational, justifiable choice but to award you (and the kids) joint custody. It can be done, but it’s extraordinarily difficult these days, so be prepared to work very hard (yes, even unfairly hard) for it.
Utah Family Law, LC | divorceutah.com | 801-466-9277
KRISTEN PULHAM,
Appellee,
v.
WILLIAM KIRSLING,
Appellant.
Opinion
Nos. 20150577-CA and 20160236-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 104901246
Margaret S. Edwards, Attorney for Appellant
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 This case involves two appeals in the same domestic relations dispute.[1] In the first appeal (the First Appeal), William Kirsling challenges several aspects of the amended decree entered in his divorce from Kristen Pulham. In the second appeal (the Second Appeal), Kirsling challenges the trial court’s denial of his petition to modify the divorce decree’s custody arrangement. We affirm the trial court’s decisions in both appeals.
BACKGROUND
The Trial and the Amended Decree
¶2 Pulham and Kirsling were married in 2008 and separated in 2010. The parties had one child (Child) born during the marriage. In June 2012, the trial court entered a bifurcated decree of divorce, reserving several issues for trial.
¶3 At a bench trial in 2014, the parties contested the issues of custody, child support, past-due child support, and unreimbursed child care expenses. Each party also alleged that the other party was in contempt of the court’s prior orders and should therefore face sanctions.
¶4 On Child’s custody, the trial court made detailed findings. Among other things, it found that Pulham had remarried, had a son with her new husband, and was living in Tooele, Utah. The court also found that Pulham had been the primary caregiver of Child since birth and that, at the time of trial, Pulham was unemployed and was acting as the full-time caregiver of her younger son and Child.
¶5 Regarding Kirsling, the court found that he was living in Taylorsville, Utah, with his girlfriend and her children, and that Kirsling’s older son from a previous marriage lived with Kirsling part-time. The court also found that Kirsling had resided in various places, including Brigham City, Utah, and Phoenix, Arizona, for lengthy periods after the parties separated. The court found that even though Kirsling’s “contact and visitation with [Child] ha[d] been inconsistent for much of that time,” his contact had “stabilized considerably” in the year leading up to trial.
¶6 Although Kirsling and Pulham agreed at trial that it would be in Child’s best interest if they shared joint physical and legal custody, they sharply disagreed about the details of that custody, including where Child should be enrolled in school and with whom she should primarily reside. A custody evaluator prepared a custody evaluation and testified about it at trial.
¶7 Kirsling requested a court order requiring Child to enroll in the school near his home in Taylorsville for three years, at which point Child would then transfer to the school near Pulham’s home for the latter half of elementary school. The court rejected Kirsling’s request, reasoning that his plan would require Child “to spend considerable time commuting by car between Taylorsville and Tooele”—amounting to “upwards of an hour each way, before school and after school”—and that it was not in Child’s best interest to do so merely to accommodate Kirsling’s preferred parenting plan. The court also reasoned that Kirsling’s plan would require Child to change elementary schools and that such a plan, which would put Child through “an unnecessary adjustment of surroundings, friends and routine,” was not in Child’s best interest.
¶8 In the November 2014 amended divorce decree (the Amended Decree), which followed the earlier bifurcated decree, the trial court awarded the parties joint physical and legal custody. The court also ordered that Pulham would be the primary custodial parent and would have the final say in parenting decisions for Child, including which school Child would attend.
¶9 As for parent-time, the court determined that a standard parent-time order, as anticipated under Utah Code section 30-3-35, did “not provide sufficient parent time” for Kirsling and was not in Child’s best interest. As a result, the court awarded Kirsling additional parent-time in a manner that avoided “creating the attendant travel time that would be inflicted upon [Child] by [Kirsling’s] proposed parenting plan.”
¶10 On future child support, the trial court found that it would be calculated based on Pulham’s monthly income of $30 and Kirsling’s monthly income of $4,580, “which are the stipulated monthly gross incomes” of the parties. Then, referencing the Utah Code and a custody worksheet,[2] the court ordered Kirsling to pay Pulham $548 per month for child support.
¶11 On past-due child support, the trial court found that the evidence supported Pulham’s claim that Kirsling had an outstanding obligation for a period before 2012. The court also found that Pulham incurred fees paid to the Office of Recovery Services (ORS) due to Kirsling’s “failure to timely pay his child support obligation.” Because Kirsling had not been “consistently responsible for payments until ORS intervened,” the court agreed with Pulham that Kirsling should reimburse her for the ORS fees. Accordingly, the court ordered Kirsling to pay Pulham for past-due child support and ORS fees.
¶12 On unreimbursed child care expenses, the trial court found that Pulham had shown that Kirsling had not paid his share of some expenses. The court ordered Kirsling to pay Pulham those expenses.
¶13 Finally, on the allegations of contempt of court, the trial court found that “insufficient evidence was presented at trial to warrant sanctions for either party.” Thus, the court dismissed all charges of contempt.
The Motion for a New Trial
¶14 Kirsling moved for a new trial pursuant to rule 59(a) of the Utah Rules of Civil Procedure.[3] The motion was accompanied by an unsworn document signed by his attorney that purported to be Kirsling’s affidavit. As relevant here, Kirsling challenged the trial court’s decisions regarding child support and custody as well as the amounts Kirsling owed to Pulham for past-due child support and child care expenses.
¶15 With respect to the amounts owed to Pulham for past-due child support and child care expenses, Kirsling contended that, under rule 59(a)(4), he had newly discovered evidence that he could not have produced at trial. Referring to Pulham’s testimony that she did not receive a particular payment, he asserted that post-trial he was “able to obtain a photocopy of the cashed money order that was presented to [Pulham’s] counsel as settlement for the financial issues of the case” and that the new information affected the amounts he owed Pulham.
¶16 In denying the motion, the trial court began by characterizing the purported affidavit as “an argument by [Kirsling’s] counsel, complaining generally of the failure of the Court to find in [Kirsling’s] favor.” The court then rejected Kirsling’s newly discovered evidence argument, explaining that Kirsling had not established “whether or why he was unable to obtain this evidence prior to trial” and also had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”[4]
¶17 Kirsling raised another argument under rule 59(a)(6), attacking the court’s determination that Pulham’s gross monthly income was $30 for child support purposes. Kirsling argued that the evidence was insufficient because the court did “not show[] why Ms. Pulham’s income was not calculated” based on her employment potential and probable earnings pursuant to a statute governing the imputation of income. Kirsling asserted this same argument as an error of law under rule 59(a)(7).
¶18 The court rejected Kirsling’s arguments. It explained that Utah Code section 78B-12-203(7) dictates the circumstances under which the trial court may impute income and gives discretion to the court to impute under those certain circumstances. The court then explained that it “did not impute income to [Pulham]” and that the application of this statute was “not the basis for a complaint of ‘insufficient evidence’” under rule 59(a)(6). Similarly, the court concluded that, in relation to rule 59(a)(7), it had not committed an error of law, because it had “exercised its discretion in determining not to impute income to [Pulham], something the statute authorizes it to do.”
¶19 Concerning custody, Kirsling contended that, under rule 59(a)(7), the trial court erred when it did not follow the recommendations of the custody evaluator. In particular, he stated that the court failed to provide “a detailed and clear finding” explaining why it did not adopt the custody evaluator’s recommendation. The court rejected this argument as well, maintaining that it had “articulated the reasons for its decision regarding custody.”
¶20 The trial court denied the motion for a new trial on June 17, 2015. Kirsling filed a timely notice of appeal, giving rise to the First Appeal. In his notice of appeal, Kirsling stated that he thereby appealed “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and that the appeal was “taken from such parts of the judgment as follow”: Paragraph 3 regarding child support calculation; Paragraph 4 regarding child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt.
The Petition to Modify the Amended Decree
¶21 On the same day he filed the First Appeal, Kirsling petitioned the trial court for a modification of the Amended Decree. Specifically, Kirsling asserted that “[a] significant change of circumstances has occurred as a result of [his] recent relocation to Stansbury Park, Utah, which is located approximately 15 minutes of driving time from his home to the home of [Pulham].” Kirsling further asserted that at the time the trial court entered the Amended Decree he lived approximately forty-five minutes away from Pulham and that “[t]his distance affected the Court’s awarding of parent time for both the overnight schedules, school choices and the midweek parent time determinations.” Because the long “commute time no longer exist[ed],” Kirsling requested that the court change the schedule to “fifty-fifty,” essentially asking to have Child spend every other week with him.[5]
¶22 Pulham responded by filing a motion to dismiss the petition to modify. Although she did not dispute that Kirsling had relocated, she contended that Kirsling’s move from Taylorsville to Stansbury Park did “not represent a change of circumstances sufficient to modify the controlling order,” because it did not affect her “parenting ability” and the “functioning of the current custodial relationship.”
¶23 A court commissioner heard the matter and recommended that the trial court deny Pulham’s motion to dismiss. Pulham objected to that recommendation, and the trial court ultimately resolved the petition to modify on its merits. The court observed that it had “considered the distance the minor child would be subjected to traveling” when entering its custody and parent-time orders in the Amended Decree, but it expressed concern that Kirsling’s “stop” in Stansbury Park would be “brief,” in light of his “somewhat migratory history.” The court also expressed concern that, “given the timing of the move and the petition itself, [Kirsling] made this move solely to create a change in circumstances in an effort to succeed in modifying the decree.”
¶24 Although Kirsling’s relocation closer to Pulham “benefits
all parties, including the minor child,” the court concluded that the “move, in and of itself, is wholly insufficient to create a sufficient change of circumstances to warrant reconsideration” of the Amended Decree, and it denied Kirsling’s petition to modify. Kirsling filed another notice of appeal, which triggered the Second Appeal.
ANALYSIS
I. The First Appeal
¶25 Kirsling raises three issues in the First Appeal. First, he contends that the trial court erred in calculating “Pulham’s income at $30 per month for child support purposes.” Second, he contends that it erred in denying his motion for a new trial on his claim of newly discovered evidence related to child care expenses. Third, he contends that the trial court erred in deviating “from the recommendations of the court-appointed custody evaluator without making any specific findings on the record as to its deviation.” Before we reach the merits of these contentions, however, we must consider whether Kirsling’s notice of appeal vested this court with jurisdiction to consider and address these issues.
A. The Scope of This Court’s Jurisdiction
¶26 As a threshold matter, we first consider Pulham’s argument that this court lacks jurisdiction to review certain issues on appeal. Pulham argues that “Kirsling’s notice of appeal invokes this Court’s jurisdiction over only some of the issues he has argued in his brief.” According to Pulham, “Kirsling’s notice of appeal references only the decisions in the Amended Decree relating to child support, a monetary judgment, and the dismissal of contempt charges,” and “[b]ecause [his] notice of appeal does not reference the district court’s custody award or the . . . denial of [his] motion for a new trial, this Court lacks appellate jurisdiction over issues related to those decisions.” Kirsling counters that a notice of appeal’s “designation of the specific parts [of an order or judgment] does not waive the appeal of the whole order or judgment” and that therefore this court “has jurisdiction over all of the issues raised on appeal . . . , as well as the issues concerning the post-trial motion” for a new trial.
¶27 “Whether appellate jurisdiction exists is a question of law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 (quotation simplified). Likewise, we “determine whether a Notice of Appeal is adequate to grant this court jurisdiction as a matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 P.3d 1167 (quotation simplified).
¶28 The Utah Supreme Court has “emphasized that the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case . . . [because the opposing party] is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quotation simplified). Rule 3(d) of the Utah Rules of Appellate Procedure dictates the content of a notice of appeal: “The notice of appeal . . . shall designate the judgment or order, or part thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a result, an “order not identified in the notice of appeal falls beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 106.
¶29 “[W]here the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (quotation simplified). Put another way, “[w]here the appealing party’s intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient.” Id. ¶ 15.
¶30 As noted above, rule 3(d) requires that the notice of appeal “designate the judgment or order, or part thereof, appealed from.” Utah R. App. P. 3(d) (emphasis added). If an appellant has adequately designated the judgment or order appealed from, we do not read the rule’s language as also requiring the appellant to designate the “part thereof.” See id. But where an appellant chooses to identify the specific parts of a judgment subject to the appeal and gives notice of its intent to appeal only those parts of a particular judgment, our jurisdiction is limited by that representation. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106. In other words, “our jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that the language of a notice of appeal limits an appellate court’s jurisdiction to those issues expressly identified in the notice);[6] see also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” (emphasis added)).
¶31 Here, Kirsling’s notice of appeal for the First Appeal states that he appeals “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and specifies that the appeal “is taken from such parts of the judgment as follow”:
Paragraph 3 regarding child support calculation;
Paragraph 4 wherein Mr. Kirsling was ordered to pay . . . child support and ORS fees and . . . child care expenses; and
Paragraph 8 wherein all charges of Contempt are dismissed.
The Amended Decree was entered on November 4, 2014. The order denying Kirsling’s motion for a new trial was entered on June 17, 2015. When the notice of appeal is considered in context, its reference to “the final Decree of Divorce” manifests Kirsling’s intent to appeal from the Amended Decree, and its reference to an order “entered in this matter on June 17, 2015,” manifests his intent to appeal from the order denying his motion for a new trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 (interpreting a notice of appeal as an appeal from a January 15 order despite its reference to a nonexistent January 11 order because the appellant’s intent to appeal the former order was evident from the context). We thus conclude that Kirsling’s notice of appeal sufficiently designates the Amended Decree and the order denying the motion for a new trial as “the judgment[s] or order[s] . . . appealed from.” Utah R. App. P. 3(d).
¶32 But the notice of appeal does more; it also designates the “part[s] thereof” to be appealed. See id. It does so by stating that the appeal “is taken from such parts of the judgment as follow”: Paragraph 3 regarding child support; Paragraph 4 regarding past-due child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt. Because the Amended Decree has paragraph numbers and subject matters that correspond to those mentioned in the notice of appeal, we read the notice of appeal’s references to specific paragraphs as referring to Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe the notice of appeal as manifesting Kirsling’s intent to contest on appeal only the issues of child support, past-due child support, ORS fees, child care expenses, and contempt. In contrast, the notice of appeal does not convey Kirsling’s intent to appeal issues related to the custody evaluation or the parenting plan— issues that were resolved in other paragraphs of the Amended Decree that are not cited in the notice of appeal. By expressly identifying the parts of the trial court’s ruling from which the appeal was taken, Kirsling manifested an intent not to appeal the other parts of the trial court’s Amended Decree and its related order denying his post-trial motion.[7]
¶33 In sum, because Kirsling’s notice of appeal identifies the specific parts of the trial court’s Amended Decree that he contests on appeal, our jurisdiction is limited to those particular parts. To be precise, this court has jurisdiction to review issues related to “the child support calculation”; the order directing Kirsling to pay ORS fees, past-due child support, and child care expenses; and the dismissal of the contempt charges.[8] The issues in his opening brief that are not identified in his notice of appeal—relating to the custody evaluation and the parenting plan—are outside this court’s jurisdiction. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had no jurisdiction to review a consent order, where that order was not mentioned in the notice of appeal and where that order was a distinct final judgment from another final judgment that was properly identified in the notice of appeal). Having identified those issues that are properly before this court in the First Appeal, we now address their merits.
B. Calculation of Income for Child Support Purposes
¶34 Kirsling contends that the trial court erroneously calculated Pulham’s monthly income for child support purposes as $30, asserting that “[e]ither the $30 per month finding regarding Pulham’s income was supported by insufficient evidence, or the trial court erroneously imputed income to her absent proper procedure.” In his view, Pulham’s income should have been imputed at a much higher amount. He thus asserts that the trial court’s error resulted in “an excessive award of child support to Pulham” and asks us to reverse and remand for the trial court to “determine the income based on [Pulham’s] historical income.”
¶35 Because trial courts have broad discretion to award child support, we will not disturb such a decision “absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified). Likewise, we review the trial court’s denial of Kirsling’s motion for a new trial for abuse of discretion. See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set aside the trial court’s factual findings only if they are clearly erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)).
¶36 We begin with Kirsling’s contention that the trial court’s finding regarding Pulham’s income is clearly erroneous because it lacks evidentiary support. On this point, we agree that no evidence adduced at trial supported the conclusion that, at the time of trial, Pulham had a monthly income of $30. It was undisputed that Pulham was unemployed and cared for her young children full-time. The trial court, however, did not purport to base its determination of income on the testimony or other evidence at trial. Rather, the court twice stated that its income determination was based on the parties’ “stipulated monthly gross incomes.”
¶37 Kirsling does not acknowledge the trial court’s explanation that its income determination was not based on evidence but on a stipulation by the parties. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (requiring an appellant to address the basis for the trial court’s ruling). Nevertheless, we acknowledge that the referenced stipulation does not appear to be in the record on appeal. And, when asked in oral argument to explain the origin of the $30 figure, counsel for Pulham admitted that he did not know.
¶38 But even assuming the court erred in determining that the parties stipulated to Pulham’s monthly income in the amount of $30, we conclude that the error would not warrant reversal. “[W]e will not reverse a judgment merely because there may have been [an] error; reversal occurs only if the error is such that there is a reasonable likelihood that, in its absence, there would have been a result more favorable to the complaining party.” Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). As noted above, the undisputed evidence at trial showed that Pulham was unemployed and had no income. Thus, if the court erred in attributing some income to her based on a stipulation, that error arguably favored Kirsling. At the least, Kirsling has not demonstrated that if Pulham’s income was decreased from $30 to $0 that his child support obligation would be reduced. As a result, we will not reverse the trial court on this basis.
¶39 We further conclude that Kirsling has not established that the alleged error of which he complains entitles him to his requested relief—a new trial with the opportunity to request the imputation of additional income to Pulham based on evidence not presented at trial. Kirsling did not move for a new trial on this issue under rule 59(a)(4) of the Utah Rules of Civil Procedure based on a claim of newly discovered evidence, and he has not shown that the court committed an error of law by not imputing income to Pulham based on her anticipated earnings or the federal minimum wage such that a new trial would be warranted under rule 59(a)(7). See Utah Code Ann. § 78B-12-203(7) (LexisNexis 2012) (allowing under certain circumstances for the imputation of income for child support purposes based on employment potential and anticipated earnings or the federal minimum wage for a forty-hour work week).[9] See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014) (permitting the court to grant a new trial on the grounds of newly discovered evidence or errors in law).
¶40 Income in a contested case may be imputed under Utah Code section 78B-12-203 only if the court “enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(7)(a). Where income is imputed, it “shall be based upon [the parent’s] employment potential and probable earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no recent work history” or an unknown occupation, “income shall be imputed at least at the federal minimum wage for a 40-hour work week,” id. § 78B-12-203(7)(c). Moreover, income “may not be imputed” if certain conditions exist, including where “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(d)(i).
¶41 The subject of imputation of income was not raised until Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on appeal, none of the factors relevant to imputing income to Pulham based on her employment potential and probable earnings were discussed, and information about those factors was not placed on the record. In fact, the only evidence at trial arguably relevant to the imputation of income was that Pulham worked for a time but that she “barely made anything” after paying for child care. Given that the record contains no evidence regarding Pulham’s employment potential and probable earnings, and given that her undisputed testimony was that the cost of child care approached the amount of income she previously had earned, see id., we cannot conclude that the trial court committed legal error in not imputing income to Pulham under section 78B-12-203(7)(b).
¶42 Similarly, Kirsling’s argument that the trial court should have imputed income to Pulham under Utah Code section 78B12-203(7)(c) at the federal minimum wage also fails. Not only did Kirsling not ask for imputation under this provision at trial or in his post-trial motion, but he now admits that “Pulham does have recent work history.” Thus, he implicitly concedes that imputation under that section would not have been appropriate. See id. § 78B-12-203(7)(c) (“If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week.” (emphasis added)). We therefore affirm the trial court’s child support order and its denial of Kirsling’s related rule 59 motion.[10]
C. Newly Discovered Evidence Related to Child Care Expenses
¶43 Kirsling next contends that the trial court erred in denying his motion for a new trial when it refused to consider newly discovered evidence relating to past-due child care expenses. According to Kirsling, he “had been misinformed at the time of trial that he could not obtain evidence to show that Pulham had received and cashed” a money order that he had given to her counsel, but he was able to obtain a copy of that cashed money order after trial. Kirsling asserts that he undertook due diligence but that the misinformation given to him was “outside of his control.” He further asserts that the copy of the cashed money order would “affect[] the financial settlement ordered by the court” and that therefore the court should have granted him a new trial. [11]
¶44 Rule 59(a)(4) provides that a new trial may be granted if a party shows the existence of material and “[n]ewly discovered evidence, . . . which he could not, with reasonable diligence, have discovered and produced at the trial.” Utah R. Civ. P. 59(a)(4) (2014). Such a motion “shall be supported by affidavit.” Id. R. 59(c). “In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion.” Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341 (quotation simplified).
¶45 The trial court denied Kirsling’s rule 59 motion based on his claim of newly discovered evidence. The court reasoned that he had not established “whether or why he was unable to obtain this evidence prior to trial” and had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”
¶46 Kirsling’s argument fails because he has not addressed the trial court’s rationale for denying his motion. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (explaining that an appellant must address and show error in the basis for the trial court’s ruling). Moreover, though Kirsling recites the factual basis for his claim that evidence was newly discovered, he cites no evidentiary basis for his assertions that he could not obtain the relevant evidence prior to trial. Aside from his rule 59 motion and memorandum, the only material that Kirsling presented to the trial court in support of his newly discovered evidence claim was a document signed by his attorney purporting to be Kirsling’s affidavit. Rule 59(c) requires that a newly discovered evidence claim be “supported by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court correctly noted, the purported affidavit is “more accurately characterized as an argument by [Kirsling’s] counsel.” Given Kirsling’s failure to provide the trial court with evidentiary support, the court did not exceed its discretion in denying Kirsling’s motion.
II. The Second Appeal
¶47 The Second Appeal centers on the trial court’s denial of Kirsling’s petition to modify the Amended Decree. We first address Kirsling’s sole argument on appeal regarding that decision, and then address the parties’ requests for an award of attorney fees incurred in the Second Appeal.
A. The Petition to Modify
¶48 Kirsling argues that the trial court “applied an incorrect heightened standard to arbitrarily foreclose modification” on the basis that “a substantial change of material circumstances had not occurred.” According to Kirsling, he was asking for a modification of parent-time, and the trial court therefore should have applied “a less strict” standard.
¶49 “We generally review the determination to modify a divorce decree for an abuse of discretion. However, to the extent that determination is based on a conclusion of law, we review it for correctness.” Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 P.3d 796 (quotation simplified).
¶50 The Utah Supreme Court has recognized that the threshold “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). As a general rule, modifying a custody order requires a showing of a substantial and material change in circumstances. Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast, altering parent-time arrangements requires a showing of changed circumstances, but that “showing does not rise to the same level as the substantial and material showing required when a district court alters custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611 (Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker, 2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051.
¶51 Contrary to Kirsling’s contention, the trial court did not apply a “substantial change of material circumstances” standard. The court ultimately stated that Kirsling’s move was “insufficient to create a sufficient change in circumstances to warrant reconsideration of the Court’s Order.”[12] (Emphasis added.) And while the court described the standard as “high,”nowhere in its order did it identify the “substantial change of material circumstances” standard as the one that must be met.
¶52 Even more importantly, however, the trial court did not arbitrarily refuse to hear Kirsling’s petition based on an application of a standard. Rather, the court considered the merits of Kirsling’s petition. The court accepted as true that Kirsling moved to Stansbury Park after the entry of the Amended Decree, but it rejected his assertion that the court’s custody and parent-time orders were driven primarily by the fact that Kirsling lived in Taylorsville at the time of trial. The court expressed concern that Kirsling’s “stop in [Stansbury Park would] be . . . brief,” given Kirsling’s “migratory history.” The court also expressed concern that the move was motivated to create a change of circumstances to justify a modification of the Amended Decree. Thus, rather than reject Kirsling’s petition on the basis that a move by one parent fails to constitute a “substantial change in material circumstances,” the court considered its merits and determined why Kirsling’s move, under the relevant circumstances, did not warrant modification of the court’s order.
¶53 But even assuming the court’s order could be construed as having applied a “substantial change in material circumstances” standard, Kirsling’s argument would fail for lack of preservation. “To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (quotation simplified). “We generally do not address unpreserved arguments raised for the first time on appeal.” Id.
¶54 Kirsling never alerted the court to his argument that his petition requested a type of modification that should be based on something less than a substantial and material change of circumstances. Instead, he practically invited the court to apply the heightened standard. Kirsling premised his petition on the occurrence of “[a] significant change in circumstances,” and in his briefing he referred to a move to a new community as an example of a “material and substantial change[]” justifying the modification of a custody award. These submissions— particularly the suggested standard—arguably invited the court to apply the standard about which Kirsling now complains. See Kerr v. City of Salt Lake, 2013 UT 75, ¶ 44, 322 P.3d 669 (stating that under the doctrine of invited error, “a litigant may not induce the trial court to make a ruling and then argue on appeal that the ruling was in error”). In any event, Kirsling did not preserve his argument that the court erred in applying the substantial change of circumstances standard rather than “a less strict” standard “for a change in parent time.” See Baumann v. Kroger Co., 2017 UT 80, ¶¶ 17–18 (deeming an argument unpreserved where the appellant did not argue for the more forgiving standard she advocated for on appeal and where she arguably invited the district court to apply the less forgiving standard). Thus, we will not now reverse the trial court’s denial of his petition to modify on that basis. See Gowe, 2015 UT App 105, ¶ 9.
B. Attorney Fees on Appeal
¶55 Both parties request an attorney fees award pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows this court, if it determines that an appeal is “either frivolous or for delay,” to “award just damages, which may include . . . costs . . . and/or reasonable attorney fees, to the prevailing party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees under rule 33 face a high bar,” and the Utah Supreme Court has directed that such sanctions are warranted only in “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51 (quotation simplified). We conclude that this case does not present an egregious case and therefore deny the parties’ requests for attorney fees.
CONCLUSION
¶56 In the First Appeal, we conclude that only two of the three issues that Kirsling argues on appeal were identified in his notice of appeal and are properly before this court. On the merits of those two issues, we conclude that Kirsling’s challenge to the trial court’s calculation of income fails and he has not shown that the trial court erred in denying his motion for a new trial based on his claim of newly discovered evidence. As for the Second Appeal, we conclude that the trial court did not err in denying Kirsling’s petition to modify the Amended Decree. Accordingly, we affirm the trial court’s decisions in both appeals.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] We have consolidated Case No. 20150577-CA and Case No. 20160236-CA for purposes of this opinion.
[2] This child support worksheet is not part of the record on appeal.
[3] Rule 59(a) provided, in relevant part, that “a new trial may be granted to . . . any . . . part[y] and on all or part of the issues, for any of the following causes[:] . . . (a)(4) [n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to justify the verdict or other decision”; or “(a)(7) [e]rror in law.” Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended, we cite the version in effect at the time Kirsling filed his motion.
[4] Kirsling also cited rule 59(a)(3), making a related argument that he was surprised by Pulham’s assertion at trial that she had not received the settlement payment and that it was “not prudent to expect [him to] guard against” that assertion. While Kirsling briefly refers to rule 59(a)(3) in his statement of the issues on appeal, he makes no argument based on surprise and instead focuses this portion of his appeal on rule 59(a)(4) and his contention of newly discovered evidence. Accordingly, we do not address whether the trial court abused its discretion in not granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career Service Review Office, 2013 UT App 187, ¶ 20, 307 P.3d 665 (refusing to consider an undeveloped and inadequately briefed issue).
[5] The parties seem to agree that Kirsling was trying to move from 40% overnights to 50% overnights.
[6] Substantively similar to Utah Rule of Appellate Procedure 3(d), the federal counterpart requires that a party designate in its notice of appeal “the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 2011 UT 15, ¶ 16 & n.22, 250 P.3d 48 (indicating that where federal court procedural rules are substantively similar to Utah’s rules, we may look to interpretations of the federal rules for guidance and as persuasive authority).
[7] The same intent is also manifest in Kirsling’s petition to modify the Amended Decree, which he filed contemporaneously with his notice of appeal. In his motion, he advised the trial court that “[a] Notice of Appeal on three sections of the Decree of Divorce is being filed, but none of these sections pertain to or affect this Petition to Modify regarding parent time.” In his supporting affidavit, Kirsling further “emphasize[d] that none of the items that [he] . . . [n]oticed [for appeal] pertain to the issues” raised in his petition to modify the trial court’s determinations regarding parent-time.
[8] Despite the fact that the issues related to the ORS fees and the contempt charges are within our jurisdiction, Kirsling has not briefed on appeal any challenge to the trial court’s decisions on those issues. Consequently, we do not consider them further.
[9] This statutory provision was recently amended. We cite the version in effect when the trial court determined Kirsling’s child support obligation.
[10] In his motion for a new trial, Kirsling also argued that the child support order should have given him credit for other children in his home. The trial court rejected that argument. On appeal, Kirsling refers to these facts, but he does not present any related analysis supported by citations to the record and legal authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has not carried his burden to show error in the court’s decision on this point.
[11] Kirsling purports to challenge the trial court’s calculation of the amounts he owed Pulham for past-due child support and child care expenses, asserting that the court erred “in determining the financial award” and “in denying the financial settlement or offsetting amounts owed to Pulham.” But because his related briefing focuses on the denial of his rule 59 motion and does not attempt to show other error in the Amended Decree’s calculation of the amounts Kirsling owed to Pulham, we construe his argument as pertaining solely to the court’s denial of the rule 59 motion.
[12] Kirsling points to this statement as evidence that the court applied the “substantial change in material circumstances” standard to foreclose modification. But this statement cannot be read in isolation. As we explain below, because the court actually reached the merits of Kirsling’s petition, we cannot agree that the court refused to reconsider its prior order based on an unmet threshold.
Can anyone go into a court room and sit in the back seat and just watch? Why or why not?
Courts are open to the public
With the exception of a few court proceedings that are not open to the public (some states, such as the one where I reside (Utah) do not open juvenile court or adoption proceedings to the public, but virtually all other criminal and civil proceedings are open to the public), yes, anyone can walk in to the courtroom and observe public proceedings. The reasons for this are that judges are public servants, the courts are funded by taxpayer dollars, and the administration of justice is a public good that members of the public has a right to oversee. May it ever be so.
Learn how courts work
If you have a court appearance coming up, you’d be wise to go to court beforehand and observe how things work, what kind of approaches succeed and what don’t.
Depending on what kind of case you are a loved one has coming up, you can find one like it on court calendars and then show up at court on the day of the hearing to observe what happens and to take notes.
Does and don’ts
Bear in mind that you cannot bring recording devices like a video camera or an audio recording device with you, but you can bring a pad and paper, or take written notes on your smart phone.
Court calendars
And if you happen to see a particularly good attorney in court and you’re looking for an attorney yourself, don’t be afraid to go up and talk to that attorney after court is over. Most of them would be happy to tell you if they can help you, and if not, who they might recommend instead.
Why are there no penalties for false allegations in divorce and custody issues?
First, there are penalties meted out; in my opinion few (far too few) in law enforcement, child protective services, and courts, however, are sensitive to lying and then punish it and punish it fairly, appropriately, and effectively.
Clearly, the best people of whom to ask your question would be those who are lied to and who do nothing about it, but when I ask those people they usually lie (whether by omission or commission) as well. They usually won’t tell you the truth in response to the question because they don’t want to account for their failure to do their jobs properly.
“It is wrong and immoral to seek to escape the consequences of one’s acts.” ― Mahatma Gandhi
“A body of men holding themselves accountable to nobody ought not to be trusted by anybody.” ― Thomas Paine
So here are my honest observations in response to the questions “Why are there no penalties for false allegations in divorce and custody issues?” and “Why are people allowed to lie to judges and investigators with no penalties?”
There is no absolute failure to punish wrongdoers. But therein lies a problem of its own. Few (too few, in my opinion) are punished for lying to law enforcement, child protective services, the courts, etc. Such punishments are so infrequent and inconsistent, so arbitrary and capricious and selective, that they hardly vindicate the system.
That stated, in my opinion (and it’s an informed opinion), because there are the following beliefs—mere beliefs, mind you; these are not facts—in the system: A) there are insufficient resources to monitor, investigate, determine, and then punish the false allegations; B) (a corollary to “A”) keeping an eye out for, monitoring, investigating, determining, and then punishing false allegations, and B) (a corollary to “A”) is more trouble than it’s worth; C) punishing people makes the punishers unpopular and at risk of retaliation; D) imperfect people feel as though it is hypocritical to hold other people to standards when they themselves don’t uphold those standards.
Finally, one big reason lies aren’t punished is because they are so often believed! In family law especially, the more serious the allegations the more the urge to be protective (to err on the side of caution) clouds one’s judgment. Worse, in today’s culture of “start with believing” (as opposed to starting with 1) a presumption of innocence and 2) then starting with investigating), those in the legal system who don’t accept allegations of spousal and child abuse without thinking are–perversely–branded as unenlightened and corrupt. This is why it’s so effective to make false allegations of spousal and child abuse.
Day v. Barnes – 2018 UT App 143
THE UTAH COURT OF APPEALS
MACAELA DAY,
Appellant and Cross-appellee,
v.
TYLER BARNES,
Appellee and Cross-appellant.
Opinion
No. 20160974-CA
Filed July 27, 2018
Second District Court, Farmington Department
The Honorable David M. Connors
No. 134700668
Theodore R. Weckel Jr., Attorney for Appellant and Cross-appellee
Eric B. Barnes and Jason F. Barnes, Attorneys for Appellee and Cross-appellant
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN and RYAN M. HARRIS concurred.
MORTENSEN, Judge:
¶1 Macaela Day and Tyler Barnes are mother and father to Child. Child was born in 2010, when Day was about fifteen and Barnes was about seventeen. Day and Barnes have struggled over custody for most of Child’s life. In this iteration of that struggle, both parties contend that the district court erred.
¶2 Day appeals the district court’s custody determination on her motion to relocate, which the parties first argued before a commissioner. Because we conclude that the district court applied the wrong standard in making its findings and conclusions, we vacate the district court’s order and remand for further proceedings.
¶3 Barnes appeals the district court’s order, alleging that the order establishes an automatic future modification to the custody order upon Day’s decision to relocate. We conclude that the order does not operate as Barnes alleges.
BACKGROUND
¶4 We join the parties’ custody saga at a moment of apparent, though short-lived, agreement. In April 2013, the parties stipulated—and a Massachusetts court accepted—that Barnes, who lived in Utah, would be awarded temporary custody of Child, with standard parent time for Day, who lived in Massachusetts. Just under one month later, Day filed a petition in Utah, requesting that Utah courts assume jurisdiction of the case and award custody to her. The district court assumed jurisdiction of the case and ultimately denied Day’s motion for custody. In so doing, the court kept the temporary custody agreement in place, awarding Barnes primary physical custody of Child should Day remain in Massachusetts, but awarding the parties shared custody should Day relocate to Utah.
¶5 Day continued to reside in Massachusetts, although she also periodically lived in Utah for months at a time. Day filed another motion to modify temporary custody, which the court denied. As the case progressed toward trial, the parties reached another stipulation, providing that, should Day move back to Utah, Day would be designated as Child’s primary caregiver and that she would have final decision-making authority under a joint legal and physical custody framework.
¶6 In July 2015, Day moved to Utah. However, in September 2015, Day provided notice of her intent to relocate back to Massachusetts. When Barnes opposed the relocation, Day filed a motion to relocate.
¶7 A hearing on Day’s motion to relocate was held before a commissioner. As per usual procedure, the commissioner entertained oral argument but did not take evidence. The commissioner recommended denial of the motion. Day objected to the commissioner’s recommendation and the district court held an evidentiary hearing. The district court overruled Day’s objection to the commissioner’s recommendation and denied her motion. In its ruling, the district court concluded that “[a] party objecting to the Commissioner’s recommendation has the burden of demonstrating that the Commissioner’s recommendation is incorrect.” The court found that Day had “not presented new circumstances that the [c]ourt did not already consider in its [previous custody determination], except for evidence that she is now in a serious relationship with a boyfriend and has plans to be married in the future.”
¶8 The court concluded that Day “has not carried her burden of demonstrating that the Commissioner’s recommendations were incorrect and that moving the child to Massachusetts would be in the child’s best interest” because “[t]he new evidence presented related to [Day’s] blossoming relationship with her new boyfriend is not a factor that renders the Commissioner’s recommendation erroneous.”
¶9 In denying Day’s motion to relocate, the court ruled that “[n]othing in this Order modifies the general provisions of the [previous] stipulated order that designate [Day] as the primary custodial parent, with the parties exercising one week on, one week off shared parent time, if [Day] actually relocates to Utah.” The court continued, “If [Day] elects to return to Massachusetts, the custody arrangement will return to that stated in the [c]ourt’s [earlier custody order].”
¶10 Day appeals the court’s denial of her motion to relocate. Barnes cross-appeals, arguing that the court’s order improperly establishes an automatic modification to custody in the event that Day decides to relocate.
ISSUES AND STANDARDS OF REVIEW
¶11 Day alleges four errors: (1) the district court erred by interpreting rule 108 of the Utah Rules of Civil Procedure as placing a burden on the complaining party to prove the commissioner’s recommendation was erroneous; (2) the court should have factored the parties’ difficulty co-parenting into its analysis; (3) the court’s findings were legally insufficient; and (4) the district court abused its discretion in failing to grant Day’s motion to relocate. We reach only the first issue: whether the district court misinterpreted rule 108.
¶12 “A district court’s interpretation of a rule of civil procedure presents a question of law that is reviewed for correctness. We interpret court rules, like statutes and administrative rules, according to their plain language.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724 (cleaned up).
¶13 On cross-appeal, Barnes contends that the district court’s order inappropriately authorizes an automatic future modification to the final decree. We review custody determinations for an abuse of discretion. Grindstaff v. Grindstaff, 2010 UT App 261, ¶ 3, 241 P.3d 365. “However, to the extent that determination is based on a conclusion of law, . . . we review the modification decision for correctness.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 9, 346 P.3d 690, cert. granted, 362 P.3d 1255 (Utah 2015) (cleaned up).
ANALYSIS
I. Day’s Appeal
¶14 In ruling on Day’s motion to relocate, the district court concluded that, under rule 108 of the Utah Rules of Civil Procedure, “[a] party objecting to the Commissioner’s recommendation has the burden of demonstrating that the Commissioner’s recommendation is incorrect.” This is an erroneous interpretation of the rule; no such burden exists.
¶15 Rule 108 generally governs objections to a court commissioner’s recommendation. In reference to the form of the objection, the rule states,
The objection must identify succinctly and with particularity the findings of fact, the conclusions of law, or the part of the recommendation to which the objection is made and state the relief sought. The memorandum in support of the objection must explain succinctly and with particularity why the findings, conclusions, or recommendation are incorrect.
Utah R. Civ. P. 108(b). In reference to the district court’s decision on the objection, the rule explains,
The judge will make independent findings of fact and conclusions of law based on the evidence, whether by proffer, testimony or exhibit, presented to the judge, or, if there was no hearing before the judge, based on the evidence presented to the commissioner.
Id. R. 108(f) (emphasis added). As stated, we “interpret court rules, like statutes and administrative rules, according to their plain language.” Strand v. Nupetco Assocs. LLC, 2017 UT App 55, ¶ 4, 397 P.3d 724 (cleaned up). Courts are, in short, bound by the text of the rule. See State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (discussing the prejudice analysis under rule 403 of the Utah Rules of Evidence and explaining that “courts are bound by the text of rule 403”), abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. Further, we “read the plain language of the rule as a whole, and interpret its provisions in harmony with other rules.” Gardiner v. Taufer, 2014 UT 56, ¶ 26, 342 P.3d 269 (cleaned up).
¶16 Looking to the plain language of rule 108, it does not provide for an appeal-like review of a commissioner’s decision, but instead requires “independent findings of fact and conclusions of law based on the evidence.”[1] Utah R. Civ. P. 108(f). Thus, the rule is explicit that the district court’s review is independent on both the evidence and the law.
¶17 This makes sense for several reasons. First, the quantum and quality of the evidence presented to the district court under rule 108 may be materially different from that which was presented to the commissioner. Typically, proceedings before the commissioner are conducted by proffer. In contrast, while a district court may sometimes proceed by proffer or by reviewing the record established before the commissioner, see id., district courts more often conduct evidentiary hearings on objections, and indeed, in cases such as the one presented here—where custody is at issue—the district court must allow live testimony when requested, see id. R. 108(d)(3)(A) (“If the hearing before the commissioner was in a domestic relations matter other than a cohabitant abuse protective order, any party has the right, upon request: . . . to present testimony and other evidence on genuine issues of material fact relevant to custody.”(emphasis added)).
¶18 Second, by operation of the rule, rulings made by the commissioner become the order of the district court until modified by that court. See id. R. 108(a). It would make little sense that the district court would be limited in reviewing what is essentially its own order. In any event, given subsection (f)’s explicit mandate requiring independent findings by the court, we hold that the district court erred in concluding that rule 108 places a burden on the objecting party to demonstrate error.
¶19 In reaching its erroneous conclusion, the district court appears to have unduly focused on rule 108(b)’s requirement that the objecting party articulate why the findings, conclusions, or recommendations are incorrect. See id. R. 108(b). The district court concluded that the specificity of these requirements places a burden of persuasion on the moving party akin to overcoming a presumption in favor of the commissioner’s recommendation. Such a reading, however, ignores the clear requirement of independent findings and conclusions in subsection (f), and reads too much into subsection (b). The requirements in rule 108(b) are briefing requirements intended to identify exactly what part of the proceeding a party objects to. Objections to a commissioner’s recommendation can be filed only within fourteen days of a ruling.[2] Id. R. 108(a). Subsection (b) then explains that the procedural requirements governing the filing— including the time for filing, length, and content of memoranda—are found in rule 7. Accordingly, subsection (b) speaks to the briefing requirements in submitting the objection to the court, not to the scope or nature of the court’s review. Thus, rule 108(b)’s requirements of specificity do not relieve the district court from its obligation to make its own “independent findings of fact and conclusions of law based on the evidence.” See id. R. 108(f). Such a reading is consistent with our precedent to read the rule as a whole, see Gardiner, 2014 UT 56, ¶ 26, and therefore we must consider subsection (b)’s requirements in light of subsection (f)’s clear direction.
¶20 Despite having misconstrued Day’s burden, the district court appears to have made findings and conclusions unique to its review of the evidence. The court ruled that “[t]he new evidence presented related to [Day’s] blossoming relationship with her new boyfriend is not a factor that renders the Commissioner’s recommendation erroneous.” But this conclusion is still couched in a misapplication of the rule—that Day, as the objecting party, bears the burden of demonstrating that the commissioner’s recommendation was erroneous. Ultimately, the district court’s findings and conclusions were weighed on an unbalanced scale. On the record before us, we cannot ascertain the degree to which the decision may have been different had the district court not wrongly applied a burden to Day. We therefore vacate the district court’s order and remand with instruction that the district court make independent findings and conclusions without imposing an erroneous burden of proof.
¶21 We note that the district court is not necessarily required to rehear the evidence. Nothing in the district court’s order or Day’s arguments on appeal indicate that there was some error in the presentation of evidence. The district court may elect to hear evidence, or it may elect to rule on the motion based on the record it has already received consistent with the holding of this opinion. Further, because we are remanding for the district court to conduct an independent and burden-free review, we will not speculate on what the court may do upon remand. Thus, we do not reach the other issues Day brings on appeal.
II. Barnes’s Cross-Appeal
¶22 Barnes also appeals the district court’s order. He alleges that the district court established an automatic modification to custody upon a triggering event: Day’s relocation to or from Utah. Because we are remanding this matter for independent findings and conclusions, we recognize that we need not address this issue now. However, because the issue is likely to arise on remand, we choose to address it. See State v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867. Here, Barnes mischaracterizes the order, and we conclude that the court’s order does not operate as Barnes alleges.
¶23 The district court ruled, “Should [Day] remain in or return to Utah, her final say authority, as set forth in the [stipulated] order, shall not be construed to permit her to take the child out of school to travel to Massachusetts or elsewhere while school is in session, unless the parties otherwise mutually agree in advance in writing. . . . If [Day] elects to return to Massachusetts, the custody arrangement will return to that stated in the [c]ourt’s [previous custody order].” Barnes argues that this ruling violates precedent, rules, and statutory requirements for modification of a decree. Barnes maintains that the order erroneously ratifies a modification in the future without requiring a showing of a change in circumstances. But the district court’s order did not ratify an automatic future modification. Instead, the ruling addressed the present best interests of Child. Specifically, the ruling rested upon a subsidiary finding that at the present time it was not in Child’s best interest to move to Massachusetts. Barnes does not assail this finding in the cross-appeal.[3] Accordingly, given the established history of Day’s frequent moves between Utah and Massachusetts—and assuming it was in Child’s best interest to remain in Utah—the district court addressed what custody arrangement would pertain should Day live in Utah and likewise addressed what arrangement would pertain should Day continue to reside in Massachusetts. See Pingree v. Pingree, 2015 UT App 302, ¶ 7, 365 P.3d 713 (affirming a district court’s custody evaluation on a request for relocation where the order concluded that “if [m]other insisted on relocating, a change in custody would be warranted”).
¶24 Because the district court’s order outlines custody based upon both where Day chose to reside at the time of the order and the then-existing best interests of Child, we perceive no error.[4]
CONCLUSION
¶25 We conclude that the district court misapplied rule 108 of the Utah Rules of Civil Procedure. The objecting party does not bear the burden to show that the commissioner’s recommendation was erroneous. Rather, the district court must make independent findings of fact and conclusions of law. We therefore vacate the district court’s order and remand to the district court for proceedings consistent with this ruling. We further conclude that the district court’s order does not establish an automatic future modification and that Barnes’s contention on cross-appeal is without merit.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1] The district court’s review of the evidence is not a true de novo proceeding. Rule 108 limits the scope of evidence allowed before the district court. See Utah R. Civ. P. 108(c) (“If there has been a substantial change of circumstances since the commissioner’s recommendation, the judge may, in the interests of judicial economy, consider new evidence. Otherwise, any evidence, whether by proffer, testimony or exhibit, not presented to the commissioner shall not be presented to the judge.”).
[2] Thereafter, a party would need to avail itself of other rules, such as rule 59, which carry obstacles to readdressing issues not found in rule 108. See Utah R. Civ. P. 59.
[3] Promoting the best interests of the child is, after all, the beginning and the end of all custody determinations, including motions to relocate, and is an objective that “should never be lost sight of.” Elmer v. Elmer, 776 P.2d 599, 604 (Utah 1989) (cleaned up).
[4] To the extent that the parties are concerned that the other party could manipulate custody based on this provision, any such attempt would always be subject to a further petition to modify custody.