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Category: Extramarital affairs/Adultery

2024 UT App 43 – domestic violence appeal

State v. Arce – 2024 UT App 43

THE UTAH COURT OF APPEALS

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

Opinion No. 20220006-CA Filed March 28, 2024

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

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

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

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

MORTENSEN, Judge:

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

BACKGROUND

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

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

Days

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

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

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

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

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

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

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

Wife’s Recantation and Testimony at Trial

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

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

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

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

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

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

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

Other Testimony at Trial

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

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

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

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

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

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

Closing Arguments and Verdict

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

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

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

ISSUES AND STANDARDS OF REVIEW

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

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

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

ANALYSIS

  1. Evidentiary Ruling

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

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

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

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

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

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

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

  1. Ineffective Assistance of Counsel

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

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

  1. Deficient Performance
  2. Invoking the Fifth Amendment

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

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

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

  1. Witness Opining and Vouching

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

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

  1. Referring to Wife as “the Victim”

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

  1. Prejudice

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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Maryland State Appeals Court Rules That a $7M Adultery Penalty in Postnuptial Agreement Is Enforceable.

On October 26, 2022, the Maryland Court of Special Appeals ruled against a husband who claimed that the infidelity penalty in a postnuptial agreement between him and his wife was void because it lacked consideration, was unconscionable and was the result of undue influence. Eight years after they married, the wife discovered her husband was engaged in an extramarital affair. As part of the process of reconciliation, the wife asked the husband that, among other things, he enter into a postnuptial agreement that husband would pay $5 million if he engaged in “inappropriate and/or immoral conduct” with his former any new paramour (paramour is a more formal term for an illicit lover of a married person). Husband not only was willing to agree the wife’s multimillion dollar penalty idea, he proposed increasing the penalty to $7 million as a showing of his good faith. Against his lawyer’s advice, husband made the agreement with his wife.

The husband subsequently engaged in another extramarital affair, and so the wife filed for divorce and sought to enforce the $7 million infidelity penalty. Husband objected, but the trial court sided with the wife. Husband then appealed that decision, but the appeals court sided with the wife as well. The court of appeals rejected the husband’s claim that the post-nuptial agreement was not substantively unconscionable where the redistribution of the parties’ assets did not “shock the conscience” of the court even though it created a somewhat imbalanced distribution of assets. The seven million dollar penalty provision in the post-nuptial agreement that was triggered if husband engaged in adultery was not against public policy in the absence of fraud, mistake, duress, or undue influence.

And the court of appeals found that the seven million dollar penalty provision in post-nuptial agreement that was triggered if husband engaged in adultery was not unconscionable given the parties’ assets and that husband controlled whether the provision was triggered. The husband says he will challenge the ruling of the Maryland Court of Special Appeals in the higher Maryland Court of Appeals. If you want to read the decision of the Maryland Court of Special Appeals, I’ve included the link to it below.

0934s21.pdf (mdcourts.gov)

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

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If your life partner has a low IQ, is divorce an option?

Yes, but not for the reason you may think.

In the age of no-fault divorce, you don’t really need to persuade the court to grant you a divorce. Divorce is essentially available on demand. Your spouse’s IQ need not have anything to do with it.

Some people think “no-fault divorce” means that “you can’t divorce me if I’m not at fault.” Not true.

No-fault divorce means that if you want to get a divorce, you don’t have to prove, as the reason for seeking a divorce, that your spouse has committed some kind of fault entitling you to a divorce. All you have to do is claim that there are “irreconcilable differences” between you and your spouse that have caused an irreparable breakdown in the marriage.

Before no-fault divorce was made the law in every state in the United States of America, one could not obtain a divorce unless his/her spouse had committed a “marital fault”. What constitutes marital fault? Each state has its own list, but generally speaking, marital fault includes:

  • adultery
  • impotency of the respondent at the time of marriage
  • cruelty
  • abandonment, desertion, neglect (failure of the spouse to provide necessary financial/temporal support)
  • insanity or severe mental illness
  • certain criminal convictions (usually a felony or those resulting in long-term imprisonment)
  • alcohol and drug abuse
  • contracting a “loathsome disease” (i.e., a sexually transmitted disease)

With no-fault divorce the law now, fault on the part of your need not exist to qualify you to file for divorce

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

https://www.quora.com/If-your-life-partner-has-a-low-IQ-is-divorce-an-option/answer/Eric-Johnson-311

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How can I make sure father won’t gain custody?

My husband cheated on me and we’re getting a divorce. He begged me not to take his children away, but I want him to suffer. How can I make sure that he won’t gain custody or even visitation rights? 

Surely you jest. Right? 

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

https://www.quora.com/My-husband-cheated-on-me-and-were-getting-a-divorce-He-begged-me-not-to-take-his-children-away-but-I-want-him-to-suffer-How-can-I-make-sure-that-he-wont-gain-custody-or-even-visitation-rights/answer/Eric-Johnson-311

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What are the 3 main issues that lead to divorce these days?

Every time you hear about divorce, what are the 3 main issues that lead to divorce these days? 

I have been a divorce and family law attorney for 26 years. In that time I have spoken to thousands of people about divorce and their reasons for seeking a divorce. While there are many reasons one may need or feel the need to divorce, the “top 3” reasons are, in my experience: 

  1. Broken trust (whether that is caused by infidelity or hiding a substance abuse problem or failing to “pull one’s own weight” in the marriage relationship, etc.) 
  2. Placing self-interest ahead of fostering the marriage partnership (which usually takes the form of expecting your spouse to be perfect and to be solely or primarily responsible for your happiness) 
  3. Immaturity and/or some kind of mental health disorder 

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

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Nix v. Nix – 2022 UT App 83- insufficient evidence of adultery

2022 UT App 83

THE UTAH COURT OF APPEALS

JILL NIX,

Appellee,

v.

ROLAND COMPTON NIX JR.,

Appellant.

Opinion

No. 20200691-CA

Filed June 30, 2022

Fourth District Court, Provo Department

The Honorable Darold J. McDade

No. 174402122

Seth D. Needs, Attorney for Appellant

D. Grant Dickinson, Attorney for Appellee

JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and JILL M. POHLMAN concurred.

TENNEY, Judge:

¶1        Under the Utah Code, there are ten “[g]rounds for divorce,” one of which is “adultery committed by the respondent subsequent to marriage.” Utah Code Ann. § 30-3-1(3)(b) (LexisNexis 2019). Interpreting this provision, our supreme court has held that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity. Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961).

¶2        When Jill Nix filed for divorce from Roland Nix Jr., she alleged “adultery committed by Roland during the marriage” as one of “the grounds for dissolution of this marriage.” During his subsequent deposition, Roland declined to answer a question from Jill’s attorney about whether he’d had extramarital sexual relations “since the marriage.” The district court later concluded that this non-response constituted an adoptive admission that Roland had committed adultery before Jill filed for divorce. Based on this conclusion, the court awarded Jill a divorce on the ground of adultery.

¶3        Roland now appeals that decision. As explained below, we agree that Roland’s non-response did not provide sufficient evidence to establish that Roland committed adultery before Jill filed her divorce petition. We accordingly reverse.

BACKGROUND[1]

¶4        Jill filed for divorce from Roland in August 2017. In her petition, Jill asserted two “grounds for dissolution of [the] marriage,” one of which was “adultery committed by Roland during the marriage.” Jill also asserted cruelty as an alternative ground for divorce. But that alternative ground was not further litigated below, the district court never ruled on it, and neither party has raised any issue about it on appeal.

¶5        In his answer, Roland “denie[d]” Jill’s “[g]rounds.” But Roland did not want the marriage to continue, so he counter-petitioned for divorce on the ground of irreconcilable differences.

¶6        Roland was later deposed. During his deposition, the following exchange occurred between Jill’s counsel, Roland, and Roland’s counsel:

[Jill’s counsel:] Have you had any sexual relations with someone other than Jill since the marriage?

[Roland:] It is none of your business.

[Jill’s counsel:] Counsel I am entitled to know.

[Roland’s counsel:] I question the relevance. I don’t think that adultery or anything has been alleged in the pleadings.

. . . .

[Roland:] We are separated and that is none of their business.

. . . . [brief break taken by the parties]

[Jill’s counsel:] We left on the question of adultery. Mr. Nix what is your response?

After another objection and then more discussion between counsel, Roland made a somewhat vague reference to a woman with whom he’d apparently had some type of relationship. A short time later, Roland was asked, “And have you engaged in sexual relations with this person?” Roland answered, “Yes.”

¶7        Roland and Jill eventually settled most aspects of their divorce. But when they weren’t able to agree on the ground for divorce, Jill’s counsel requested a trial on that issue. At a scheduling conference, however, the parties and the court agreed on an alternative procedure under which the parties would submit memoranda about the ground for divorce, after which the court would hear oral argument on the matter.

¶8        In her memorandum, Jill pointed to Roland’s non-response to the deposition question of whether he’d “had any sexual relations with someone other than Jill since the marriage.” From this, Jill asked the court to draw “an adverse inference” that Roland had “committed adultery subsequent to the marriage.” In addition, Jill pointed to Roland’s express admission that he’d “engaged in sexual relations with this person.”

¶9        In his responsive memorandum, Roland asked the court to deny Jill’s request for an adultery-based divorce. Roland asserted that under Vrontikis v. Vrontikis, 358 P.2d 632 (Utah 1961), any adultery that he had committed after Jill filed for divorce could not constitute a ground for divorce. And Roland then argued that Jill had offered no evidence that he had “committed adultery prior to her filing for divorce.”

¶10      After briefing and then a hearing, the district court issued a written decision. There, the court agreed that under Vrontikis, “adulterous conduct subsequent to a divorce petition does not constitute fault,” but that “evidence of such conduct can be used to lend weight” to other evidence that the party had “committed adultery prior to the divorce petition.” (Emphases omitted.) The court then concluded that although Roland had expressly admitted to adultery in his deposition, this express admission had only been to “adultery subsequent to the divorce petition, but prior to divorce finalization.”[2]

¶11 Given its understanding of Vrontikis, the court next considered whether there was any evidence of pre-filing adultery. The court concluded that there was. In the court’s view, Roland’s non-response to the deposition question about whether he’d had sexual relations “since the marriage” qualified as an adoptive admission under rule 801(d)(2)(B) of the Utah Rules of Evidence. Notably, the court not only regarded this as proof “that Roland did commit adultery,” but also as proof “that Roland’s adultery caused the divorce,” i.e., proof that the adultery happened pre-filing. Thus, the court concluded that even if “Roland’s express admission [was] not, stand[ing] alone, a grounds for fault, the adoptive admission satisfie[d] Jill’s burden to show that Roland’s adultery caused the divorce.” Based on this, the court later “awarded Jill a decree of divorce on the grounds of adultery.”

¶12 Roland subsequently filed a motion under rule 59 of the Utah Rules of Civil Procedure “for [a] new trial or for an alteration of judgment on the issue of grounds for divorce.” Roland challenged the district court’s ruling on several fronts, including procedural fairness, incorrect application of the adoptive admission standard, and insufficiency of the evidence. After Jill opposed the motion, the court denied it. Roland timely appealed.

ISSUE AND STANDARD OF REVIEW

¶13      Roland challenges the district court’s denial of his rule 59 motion. As he did below, Roland assails this ruling for several reasons. We need address only one of them: Roland’s contention that there was insufficient evidence to support the court’s determination that he committed adultery before Jill filed for divorce.

¶14      A district court ordinarily has “some discretion in deciding whether or not to grant a new trial.” Hansen v. Stewart, 761 P.2d 14, 17 (Utah 1988). But because Roland’s “challenge rests on a claim of insufficiency of the evidence, we will reverse only if, viewing the evidence in the light most favorable to the prevailing party, the evidence is insufficient to support the verdict.” In re Estate of Anderson, 2016 UT App 179, ¶ 7, 381 P.3d 1179 (quotation simplified); accord Hansen, 761 P.2d at 17.

ANALYSIS

¶15      The district court determined that Roland had committed adultery before Jill filed for divorce. It based this determination on Roland’s non-response to a question about this subject in his deposition, which the court regarded as an adoptive admission of pre-filing adultery.

¶16      On appeal, Roland first argues that the district court erred in concluding that his non-response qualified as an adoptive admission. But we need not decide whether this was so. Even assuming for the sake of argument that the non-response did qualify as an adoptive admission, the court was still required to point to some evidence that Roland had committed adultery before Jill filed for divorce. See Vrontikis v. Vrontikis, 358 P.2d 632, 632 (Utah 1961) (holding that evidence of adultery “subsequent to the filing of a divorce complaint is inadmissible for the purpose of establishing grounds for divorce,” though it can be “admissible as lending weight to and corroborating testimony as to prior acts” of infidelity).

¶17      Roland argues that there was no such evidence. Of note, Roland points out that, in the deposition exchange at issue, he “was never specifically asked whether he had had sexual relations with someone other than Jill since the marriage, but prior to the filing of the petition for divorce.” Having reviewed the portion of the deposition that is in the record, we agree. While Jill’s counsel asked Roland whether he had engaged in extramarital sexual relations, Jill’s counsel never asked Roland when he had done so. As a result, with respect to the critical issue of timing, the question and non-answer that supported the court’s adoptive-admission determination were silent.

¶18 Jill nevertheless points to Roland’s express admission of adultery. But on this, the district court only found that Roland had expressly admitted to postfiling adultery, and Jill has not challenged the court’s temporal limitation of its own finding on appeal. In any event, we’ve reviewed the exchange ourselves. We see nothing in it in which Roland said that his extramarital conduct was limited to post-filing behavior, but we also see nothing in it in which he admitted to any pre-filing conduct. Instead, as with the (alleged) adoptive admission, the timing of Roland’s behavior simply never came up.

¶19      This same defect exists with respect to the small amount of other evidence that Jill provided below to inferentially support her claims about Roland’s adultery. For example, Jill provided the court with a check that Roland had given her for alimony. This check was embossed with a picture of Roland and another woman, and in the identification block in the upper corner, it identified the other woman’s last name as “Nix.” Even accepting Jill’s contention that this could inferentially show that there was a sexual relationship between Roland and the other woman, what matters here is that the check was dated September 2019—which was after Jill had filed for divorce.

¶20      This leaves us with Jill’s final argument, which is to rely heavily on the favorable standard of review. Because Roland challenges the district court’s ruling on sufficiency grounds, we’re required to view the evidence in the light most favorable to the district court’s determination. But Roland’s argument presents us with a “no evidence” challenge—i.e., he argues that “even with the evidence in the record, nothing would demonstrate that . . . Roland committed adultery prior to the filing of the Petition for Divorce.” And to defeat such a claim, Jill “need only point to a scintilla of credible evidence from the record that supports the finding of fact in order to overcome [Roland’s] ‘no evidence’ assertion.” Wilson Supply, Inc. v. Fraden Mfg. Corp., 2002 UT 94, ¶ 22, 54 P.3d 1177.

¶21 She hasn’t. Even on such a review, there must be some evidence to support the determination in question. As we have explained in another context, a “reviewing court will stretch the evidentiary fabric as far as it will go,” but “this does not mean that the court can take a speculative leap across a remaining gap in order to sustain a verdict.” State v. Pullman, 2013 UT App 168, ¶ 14, 306 P.3d 827 (quotation simplified). Here, the evidence demonstrates that Roland engaged in sexual activity with another woman before his divorce was finalized. After all, he expressly admitted as much. But Vrontikis requires evidence of adultery at a particular time—namely, before the petitioner filed for divorce. Jill points to no evidence, and we see none, that even inferentially says anything about when Roland engaged in extramarital sexual activity. Without such evidence, the district court’s finding that Roland had engaged in pre-filing extramarital sexual relations cannot stand. We accordingly reverse for insufficient evidence.[3]

CONCLUSION

¶22 There was insufficient evidence to support the district court’s determination that Roland committed adultery before Jill filed for divorce. We accordingly reverse that decision and remand this case for further proceedings consistent with this opinion.[4]


[1] Because the parties share the same last name, we’ll follow our normal practice and refer to them by their first names, with no disrespect intended by the apparent informality. Also, for purposes of consistency and readability, we’ll use the parties’ first names (and corresponding pronouns) when quoting references to them from the record or the briefing, and we’ll do so without using brackets to note any such alterations.

[2] We note that Roland did not actually draw this chronological line in the portion of the deposition in which he made his express admission. But neither party has challenged the court’s determination that the express admission was only to post-filing adulterous conduct.

[3] Our determination leaves a potential wrinkle about what should happen next. At the close of his brief, Roland asks us to not only reverse on insufficiency grounds, but also to “alter the Ruling” ourselves to grant him a divorce on “the grounds of irreconcilable differences.” Roland provides us with no authority that establishes our ability to modify an order in this manner, however, so this request is inadequately briefed. Moreover, Jill petitioned for divorce on an alternative ground, but neither party on appeal has competently briefed the question of whether Jill would be entitled to continue litigating that ground if we reverse the district court’s adultery-based decree. Without such briefing, we decline to decide the question in the first instance.

[4] Jill has asked for her attorney fees on appeal. See Utah R. App. P. 24(a)(9). Because she is not the prevailing party in this appeal, we deny her request.

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Wadsworth v. Wadsworth – 2022 UT App 5 – marital estate

2022 UT App 5 

THE UTAH COURT OF APPEALS 

  1. CANDI WADSWORTH,
    Appellant,
    v.
    GUY L. WADSWORTH,
    Appellee. 

Opinion
No. 20190106-CA
No. 20200430-CA
Filed January 13, 2022 

Third District Court, Salt Lake Department 

The Honorable Su Chon 

No. 104904966 

Michael D. Zimmerman, Troy L. Booher, and Julie J.
Nelson, Attorneys for Appellant 

Clark W. Sessions, T. Mickell Jimenez, Marcy G.
Glenn, and Kristina R. Van Bockern, Attorneys
for Appellee 

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES RYAN M. HARRIS and RYAN D. TENNEY concurred. 

CHRISTIANSEN FORSTER, Judge: 

¶1 This appeal arises from the divorce and division of the marital estate belonging to H. Candi Wadsworth and Guy L. Wadsworth. Candi1 challenges various aspects of the district court’s marital property valuation, its decision to defer the payment of her share of the marital estate, its award of alimony, and various other findings and orders. Guy cross-appeals, raising challenges relating to terms of the deferred payment and the alimony award. In a separate appeal, Candi also challenges the district court’s decision not to grant her a security interest in her portion of the marital estate, which she will not receive in full until December 31, 2024. Because that issue is intertwined with various issues raised in the first appeal, we address both appeals in this consolidated opinion. 

¶2 We remand for the district court to add certain notes receivable to the value of the marital estate, to adjust its alimony award to account for Candi’s tax burden, to clarify its decision on whether security is required for the alimony award, and to grant Candi a security interest in her portion of the marital estate. We otherwise affirm the district court’s decision. 

BACKGROUND 

¶3 Candi and Guy married in 1979. Guy started Wadsworth Brothers Construction (WBC) in 1991, and over the years, it grew into a multimillion-dollar company. The parties also have interests in numerous other business entities, including two restaurants, a hotel, and various real estate holdings. 

¶4 In 2009, Candi filed for divorce, suspecting that Guy was involved in an extramarital affair. Guy denied the infidelity, and the couple reconciled. However, a year later, Guy confessed to an affair, and Candi again filed for divorce. 

Pre-Divorce Proceedings and Temporary Orders 

¶5 During the period between these two divorce filings, Guy purchased two restaurants, a plane, a cabin, and a yacht. He did not discuss any of these purchases with Candi, and she learned about them from other people. The yacht cost $2,502,800, but by the time of trial, the yacht was under water—Guy still owed $1,175,399, but the yacht was worth only $790,500. 

¶6 Without consulting Candi, Guy also assigned fractional shares of various marital entities to the Wadsworth Children’s 2007 Irrevocable Trust (the Trust) in 2009. Although the parties had created the Trust two years before, they had originally funded it with only $10. By the time of trial in 2017, the fractional shares held by the Trust were worth approximately $4 million. 

¶7 While the divorce was pending, Guy maintained control of the marital estate, apart from $1 million and two interest-generating accounts that he transferred to Candi early in the proceedings. In February 2012, the district court adopted the parties’ stipulation regarding temporary orders (the Stipulation) stating that, on a temporary basis, Guy “shall pay all of the children’s expenses as he has in the past as well as all of [Candi’s] expenses as he has in the past.” Because Guy was paying these expenses, he was not ordered to pay temporary child support or alimony at that time. The Stipulation also addressed the use of marital assets during the pendency of the divorce proceedings: 

  1. Based upon the parties’ stipulation, [Guy] shall maintain, in the regular course of business, the management and control of [WBC], as he has in the past.
  2. Based upon the parties’ stipulation, neither party shall sell, gift, transfer, dissipate, encumber, secrete or dispose of marital assets other than in the course of their normal living expenditures, ordinary and necessary business expenses and to pay divorce attorneys and expert fees and costs. [Guy] shall have the right to conduct the business hereinabove identified as he has in the past, which may include incurring debt, paying expenses and acquiring assets.

¶8 During the divorce proceedings, Candi asked the court to hold Guy in contempt based on alleged violations of the Stipulation. She asserted that he made numerous financial transactions that violated the Stipulation, including selling his home, buying a new home, selling a hotel, creating a new business entity and loaning it money, investing money in a property development company (FDFM), purchasing a jet to “flip,” and making an “undisclosed sale” of $697,448.72. The court accepted Guy’s and his estate planning attorney’s testimonies that “Guy had a history of setting up different corporate entities for liability protection purposes” and that he “did not create any entity or transfer any asset with the intention of hiding it from Candi.” The court found that “the transactions Candi complains of were consistent with Guy’s historical practice of transferring assets from one entity to another or from one form into another” and that those actions fell within the Stipulation’s condition permitting Guy “to conduct the business hereinabove identified as he has in the past, which may include incurring debt, paying expenses and acquiring assets.” The court also found that “[t]here is no indication that these transactions were out of the ordinary or done with the intent to hide assets.” 

¶9 In September 2014, Guy sought to modify the Stipulation, explaining that the parties’ last child had reached majority, that he had paid off the mortgage on Candi’s house, and that he had purchased Candi a new vehicle, thereby eliminating many of her expenses. Guy asked the court to modify its order to require him to pay Candi $20,000 per month rather than all her expenses without limit. Following a hearing in January 2015, the court ordered that Guy pay Candi $20,000 per month in temporary alimony. It also ordered that Candi “keep an accounting of how the money is spent if she desires more funds.” During the first month following the order, Candi exceeded the $20,000 budget and “she had to repay Guy for amounts she had previously spent as well as cancel planned travel with the children.” In April 2015, the court issued a written order in which it clarified that Guy should “reimburse” Candi “as to any payments beyond the $20,000” unless he could show it was “an inappropriate or excessive expense.” Candi never requested additional funds from Guy after the court issued the written April 2015 order. She claims this was because she elected to curtail her spending rather than ask Guy for extra money; she maintains that she did not believe he would comply with her requests and she did not want to incur more attorney fees to collect the money. During this period, Guy was spending approximately $60,000 per month. 

¶10 Guy represented that Candi continued to have access to the parties’ boats and planes, a cabin, free dining at the restaurants, and a country club and other exclusive resorts for which Guy continued to pay the membership fees. However, to use the planes and boats, Guy expected Candi to pay for the cost of the pilot, captain, and other expenses out of her $20,000 monthly funds. Candi did not do so because she understood the cost to be between $5,000 and $10,000 per trip. Candi also alleged that Guy refused a number of requests she made to use the parties’ shared assets. 

Procedural History of the Divorce 

¶11 The parties spent more than six years conducting discovery and other pretrial litigation before the matter finally came before the district court for an eight-day bench trial in February 2017. The court held a second four-day trial in May 2017 concerning Candi’s attempt to revoke the Trust. See infra ¶ 25. 

¶12 The court issued a Memorandum Decision, Findings of Fact and Conclusions of Law in September 2017 (the 2017 Findings). Subsequently, Candi filed a Motion to Clarify, and both parties also filed Motions to Amend. The court issued an order addressing those motions in May 2018 (the May 2018 Order). In response to that order, both parties filed additional Motions to Amend, which the district court ruled on in a Memorandum Decision and Order in October 2018 (the October 2018 Order). The court then directed Guy to prepare supplemental findings of fact to incorporate the various rulings encapsulated in the May 2018 Order and the October 2018 Order. 

¶13 Following the October 2018 Order, Guy filed an Ex Parte Motion for Expedited Entry of Decree of Divorce. Guy pointed out that new federal tax law would change how alimony was taxed for any divorce decrees entered on or after January 1, 2019. Instead of alimony being taxable to the payee spouse and deductible to the payor spouse, alimony would become taxable to the payor and deductible to the payee. Since the trial had occurred and the 2017 Findings had been entered over a year before, “predicated on the application of the existing divorce laws,” Guy asserted that it would be inequitable to enter the divorce decree after December 31, 2018. Although the court indicated that it believed “both parties are to blame” for the delays in finalizing the decree, it ultimately did enter Supplemental Findings of Fact and Conclusions of Law (the 2018 Supplemental Findings), as well as the Decree of Divorce, on December 31, 2018. 

¶14 The parties then filed a third set of cross-motions to amend the findings and conclusions, and the court held a hearing on those motions in early 2019. The court entered a Memorandum Decision and Order in May 2019, which it subsequently amended in June 2019 (the 2019 Order). The court directed Candi to prepare corrected Supplemental Findings of Fact and Conclusions of Law and a Supplemental Decree of Divorce. The court entered the Amended Supplemental Findings of Fact and Conclusions of Law (the 2019 Supplemental Findings) and the Amended Decree of Divorce on October 30, 2019. 

Expert Valuation of Marital Property 

¶15 Both parties hired experts to value the various business entities. Three aspects of that valuation and the district court’s findings are relevant on appeal: notes receivable, WBC’s backlog, and WBC’s equipment. 

Notes Receivable 

¶16 The balance sheets for three of the entities owned by Guy included in their accounting of liabilities loans that they owed to Guy—Immobiliare II, Ltd. owed Guy $252,861; Five Diamond Hospitality, Inc. owed Guy $706,605; and FDFM owed Guy $100,000. These liabilities were considered in the court’s final calculation of these entities’ value. However, the notes receivable on these loans—which belonged to Guy—were not counted as marital assets. 

¶17 The court made no mention of the notes receivable in its 2017 Findings. Candi raised this matter in her Motion to Clarify. Candi asked the court to add the value of the notes receivable to the value of the estate. In response, Guy did not assert that the notes had been included but nevertheless resisted their inclusion as part of the marital estate, arguing that Candi had not made the “request at trial and did not enter evidence of where the funds remain and in which entities or whether the funds are being used for business purposes.” The court found that “[t]he parties agree that the Court did not consider the three notes receivable” but observed that “[n]either party points to the record regarding this issue.” The court did not adjust its valuation of the estate based on the notes. 

¶18 Subsequently, Candi filed her second motion to amend, in which she again raised the matter of the notes receivable, among other things. In the October 2018 Order, the court found that Candi “does not show that those notes were not considered in the company valuations” and that it had “already addressed her argument” in the previous order. Guy was then asked to prepare supplemental findings based on the court’s order, and that version of the findings stated that “all Notes Receivable were included in the valuation of the various marital entities by the parties’ experts.” 

WBC’s Backlog 

¶19 As of June 30, 2016, WBC had a backlog of work— construction contracts that had been signed but for which the work had yet to be completed—amounting to an estimated value of approximately $75 million. Guy testified that WBC’s profit margin on such projects was typically between 5% and 7%. Candi’s expert estimated the projected net profit on the backlog to be $3,441,733. Guy’s expert estimated that the projects would realize a gross profit of $4,676,347, but he also opined that the backlog ultimately had “no value” because “the backlog in its current state” was not sufficient to sustain the company and could therefore be expected to start “absorb[ing] cash flow.” Guy also testified that WBC had struggled to make a profit since the recession and had to lay off workers and use capital to continue operating. He testified that WBC had failed to get some large contracts it was hoping for and that its backlog was less than in past years. Another witness, who advises large companies on marketing and selling their businesses, testified that “marketability” and “valuation methodologies” are “all centered around current backlog.” He explained that “in a construction company, they’re only as good as the backlog in front of them.” 

¶20 The court found that “the value of the projected backlog profit is $4 million.” However, the court adopted Guy’s expert’s valuation of WBC, which had assigned the backlog no independent value. The parties addressed the inconsistency in their motions to amend. Candi asked the court to adjust the overall valuation of WBC upward by $4 million to reflect its finding that the backlog profit was worth $4 million. Guy asked the court to change its finding that the backlog was worth $4 million to conform to its adoption of his expert’s valuation of the company, which assigned the backlog no value. In its May 2018 Order, the court found that Guy’s expert had “testified the backlog had no value to a potential buyer, and the Court adopted his valuation of WBC.” It also found that the other witness had testified that “any potential purchaser would not purchase the company based on a backlog.” Finally, it found that “Candi did not provide counter-testimony to” the “statements of no value in the backlog.” Accordingly, it concluded that “[t]he evidence supports that the backlog has no value in the valuation of the company” and amended its decision to state that “the backlog has no value.” These amended findings were incorporated into the 2018 Supplemental Findings. 

WBC’s Equipment 

¶21 Both parties hired experts to assess the value of WBC’s equipment. Guy’s expert had worked in the construction industry for twenty-five years and had been an appraiser for Ritchie Brothers Auctioneers for four years. To value the equipment, the expert used “internal standards that [Ritchie Brothers] has developed over time and experience” based on “historical auctions, personal experiences of appraisers, and knowledge of the world’s economic conditions.” Guy’s expert testified that Ritchie Brothers’ “business is derived primarily from stable operators exchanging equipment and updating equipment inventories in the normal course of business,” rather than wholesalers trying to resell and make additional profit, and that “80 percent of [their] sales . . . represent fair market value.” Guy’s expert and his team “personally inspected nearly all the pieces of equipment at issue”; “[t]hey turned on the machines, checked the miles and hours and verified the [vehicle identification numbers].” They appraised 569 items and estimated that “the entire package of equipment . . . would sell at unreserved public auction in the range of $13,890,300.” 

¶22 Candi’s expert is a member of the American Society of Appraisers and is an Accredited Senior Appraiser. He conducts appraisals based on the Uniform Standards of Professional Appraisal Practice (USPAP). He testified that “he evaluated the equipment at the fair market value of a ‘going concern’ business” and that he believed using “auction values” was more appropriate for a business that was trying to liquidate its inventory. Candi’s expert received a list of approximately 400 pieces of equipment with the make, model, description, and serial number. He “did not closely inspect each piece of equipment,” “did not start any of the equipment, did not look at the mileage or hours logged, and did not consider the condition of each piece.” He “took photos of the equipment and researched the values by contacting manufacturers, contractors, and dealers; consulting other sales [online]; and considering his prior appraisals and experience.” Ultimately, Candi’s expert valued the equipment at $22,499,255. 

¶23 The court found that the method used by Guy’s expert was “more accurate” and that his team was “more thorough in assessing the individual pieces of equipment.” The court rejected Candi’s assertion that selling equipment at “an auction house has the same connotation as a fire sale,” relying on the expert’s testimony that end users regularly buy heavy construction equipment at auction. It therefore adopted Guy’s expert’s $13,890,300 valuation of the equipment. 

Dissipation 

¶24 Candi argued to the district court that Guy had dissipated marital assets in anticipation of divorce, including spending money on his girlfriend; purchasing the yacht, a jet, and a wine collection; paying attorney fees for the Trust; and transferring money out of the estate into the Trust. Except as to $814,000 Guy spent on his girlfriend, for which it compensated Candi out of the marital estate, the court found that “Guy did not dissipate marital assets.” Although the court found that the legal fees spent on the Trust were not dissipation, it nevertheless allocated half of that value to Candi as part of the marital estate. As to the purchase of the yacht, jet, and wine, the court reasoned that Guy did not dissipate assets by purchasing these items because the items were still in the marital estate, and Candi was awarded half their value. The court also found that “[i]t was Guy’s historical practice to buy planes and boats” and that “[s]ome depreciation of” such assets “is to be expected.” The court rejected Candi’s argument that purchasing a depreciating asset should, as a rule, be considered dissipation. However, the court assigned the negative value on the yacht entirely to Guy, reasoning that he “unilaterally purchased this boat” and limited Candi’s access. 

¶25 The parties engaged in extensive litigation regarding the Trust, even going through a separate trial to address the validity of the transfers and to consider Candi’s attempt to revoke the Trust. However, the court ultimately determined that “the Trust was validly created,” that the parties intended for it to be irrevocable, that the creation and funding of the Trust was “in line with the parties’ history of gifting assets to the children as part of their wealth management and estate planning strategy,” that “there is no evidence that Guy was motivated by a desire to divest Candi of marital assets,” and that the transfers were completed before Candi filed for divorce so that the Trust property was not part of the marital estate or subject to division. Accordingly, the court rejected Candi’s argument that Guy’s transfer of assets into the Trust constituted dissipation. 

¶26 Candi also took issue with Guy’s investment in FDFM, an entity “created to develop land in [North] Dakota when the oil rush was booming.” Although Guy’s interest in FDFM by the time of trial was worth only $734,000, he had invested $1,129,000 into it. Candi asserted that the higher value should be used because Guy did not disclose the investment to her. The district court rejected this argument, explaining that Guy “never consulted with Candi on any business decisions that he made” throughout the marriage, so making business decisions without disclosing them to her was “well within the scope of his historical practices.” 

¶27 Candi also complained that Guy had used marital funds to pay his attorney fees and that his spending on fees had not been credited to the marital estate. In examining the funds each party had already received, the court recognized that Candi had received $1,277,500 in marital funds to pay her attorney and expert fees and costs. The court also estimated, based on Guy’s testimony, that Guy had spent approximately $800,000 in attorney and expert fees and costs. The court equalized these amounts in calculating the value of the marital estate. 

Division of the Estate and Equalization Payment 

¶28 The district court found that the total value of the marital estate was $43,886,329.85 and that each party should receive half of that value ($21,943,164.93). The court awarded Candi various liquid assets, real property, vehicles, retirement plans, investments, and other property totaling just over $4.7 million. It awarded the remainder of the marital property, including all interest in the parties’ various businesses, to Guy and ordered Guy to pay Candi $17,238,018.02 to compensate her for the value of her portion of the estate. The court explained that “because of the overlapping entities and the numerous assets placed in various entities, it would be more appropriate to award Candi a sum of money constituting her share of the marital estate.” The court found that “shared ownership of the companies” was not an option because “Candi does not have the business acumen necessary to know how to run these companies” and that it would be “a bad idea” for the parties to continue their relationship by operating the companies together, “especially given Candi’s distrust of Guy.” It also found that “[a] forced sale of marital business assets is not in the best interest of either party” because both parties benefit from “Guy’s continued work for WBC and other businesses.” 

¶29 Although Candi had argued to the district court that she should be given ownership of the two restaurants to help offset the portion of the estate owed to her, the court rejected that request because it found that “her limited business experience would not help her in increasing the value of the business.” In its May 2018 Order, the court further explained its refusal to award the restaurants to Candi by observing that the restaurants had only just begun to be profitable due to Guy’s careful management and that the restaurants were partially owned by a third party. 

¶30 In the initial 2017 Findings, the court did not outline a method for Candi to receive her share of the marital estate. Candi proposed several options, including appointing a special master to oversee the distribution, transferring some of the assets to her directly, sharing ownership of the companies, or forcing a sale of some of the assets. The court rejected each of these proposals. Instead, in the 2018 Supplemental Findings, the court ordered Guy to pay the amount owed to Candi “in such equal monthly installments as he shall determine.” Any remaining amount was to be paid in a balloon payment five years from the date of the entry of the Decree of Divorce, which made the final payment to Candi due December 31, 2023. The court also ordered that Guy pay 10% annual interest on the amount owed to Candi. Although Guy contested the high interest rate, the court justified it because the court had given him “substantial leeway in setting the payment schedule over the next five years.” Because Guy would have “exclusive and full access to the marital assets,” the court reasoned that the high interest rate would give him a necessary incentive to make the payments more quickly. 

¶31 In subsequent motions, the parties continued to dispute the court’s equalization order. Thus, in its 2019 Supplemental Findings, the court again modified the payment schedule. Guy was to pay Candi (1) $30,000 per month, to be applied first toward interest; (2) $500,000 per year, to be applied first toward interest; and (3) a balloon payment of the outstanding principal and interest by December 31, 2024.2 The court also modified the interest rate to 5% per year. The court explained that the 10% interest rate “was appropriate” when the court had “deferred to Guy to come up with an appropriate payment plan” but that it was excessive once the court “determined the payment plan.” Instead, the court set the interest rate at 5% and explained that rate was intended “to provide Guy with an incentive to pay the Equalizing Balance quickly.” 

¶32 After the court issued its ruling, Candi filed a motion asking the court to secure her unpaid share of the marital estate. She explained that security was necessary to “protect her from dissipation, economic uncertainties, or Guy’s death.” She also asked for an injunction ordering Guy “not to alienate, waste, dissipate, or diminish his share, ownership interest, or the value of the entities” without “Candi’s express, prior, written permission.” Candi proposed several methods for securing her interest, including attaching a UCC-1 lien to the assets of WBC or other marital entities or imposing other “conditions and covenants” on Guy and WBC. But she also explained that “there are a lot of different ways” to give her an effective security interest, including placing a lien on the restaurants, WBC’s equipment, or Guy’s interest in the businesses. 

¶33 The court refused to grant Candi any security, reasoning that it could not award a lien against the businesses because “[t]he businesses were not parties to this suit,” that the equalization payments were not subject to the Uniform Commercial Code because the division of the marital estate is not a commercial transaction, and that Guy was unable to obtain adequate life insurance to secure her interest due to his age and health. The court did not provide any further rationale for its determination that no security was warranted or explain why other options for securing Candi’s unpaid interest in the marital estate, such as a lien on Guy’s personal interest in the businesses, could not be employed. 

Alimony 

¶34 In its 2017 Findings, the district court found that Candi testified “she had more than $20,000 in reasonable monthly expenses.” However, the court found that Candi “could not testify as to specific details” and “did not prepare a financial declaration.” Nevertheless, the court examined standard financial declaration items, Guy’s financial declaration, a standard of living analysis of the parties’ pre-separation spending prepared by one of Candi’s experts, and Guy’s record of the expenses he paid on Candi’s behalf while the divorce was pending to reach a determination regarding Candi’s monthly need. The court included numerous categories of expenses in its needs calculation and determined Candi’s reasonable monthly expenses to be $27,693.90. However, the court did not include taxes in its assessment of Candi’s needs, because Candi “failed to provide evidence of her tax liability at trial.” The court imputed minimum wage income to Candi at $1,257 per month. The court subtracted the imputed income from Candi’s reasonable monthly expenses to determine that her monthly need is $26,436.90. 

¶35 The court found that Guy had a net income of $141,143 per month and reasonable monthly expenses of $50,138. Accordingly, it found that Guy easily had the ability to pay alimony in the amount of $26,436.90 per month to Candi. It ordered Guy to pay that amount of alimony for a length of time equal to the length of the marriage, effective as of the date of the 2017 Findings. Alimony was to terminate upon “the death of either party” or “remarriage or cohabitation by” Candi. The court also indicated that “Guy should provide a life insurance policy for Candi to cover alimony for a period of time sufficient to cover his obligation should he unexpectedly pass away.” 

¶36 While the parties’ various motions were pending following the entry of the 2017 Findings, Guy represented that he was unable to get life insurance due to a health condition and asked the court to remove that requirement. The court denied Guy’s request and found in the May 2018 Order, 

Although there was information regarding Guy’s health, there was no information whether or not he could or could not obtain a life insurance policy. The Court wants to ensure that Candi will receive the money awarded should he pass unexpectedly. The parties may also work toward a mutually agreeable solution that will protect Candi and her ability to receive said money. 

However, the 2018 Supplemental Findings, drafted by Guy, stated simply that “there was no information as to whether or not Guy could or could not obtain a life insurance policy for such purpose nor the cost thereof.” Candi urged the court to be more specific by making its life insurance order mandatory and requiring Guy to provide an alternative means of security if he could not get life insurance. However, the court declined to do so, stating that “[t]he Court’s ruling in the [May 2018 Order] is sufficient.” 

ISSUES AND STANDARDS OF REVIEW 

¶37 On appeal, Candi argues (1) that the operative dates of the Decree of Divorce should be adjusted or, alternatively, that the balloon payment should be due on December 31, 2023; (2) that she received unequal access to the marital estate while the divorce was pending and should be compensated for the inequality; (3) that the court erred in its valuation of the marital estate, namely, by failing to take into account the value of the notes receivable, undervaluing WBC’s backlog and equipment, and not crediting the estate for Guy’s alleged dissipation of assets; (4) that the court erred in setting the terms of the marital estate division and refusing to grant her a security; (5) that the court should have included her tax burden in its calculation of her need for alimony purposes and required Guy to secure his alimony obligation with life insurance or by some other means; and (6) that the court exceeded its discretion by not holding Guy in contempt for violating the Stipulation. 

¶38 For his part, Guy argues, on cross-appeal, (1) that the court set too high an interest rate on the balloon payment, (2) that the court should have required Candi to share in transaction costs that may be incurred if and when Guy liquidates assets to make the balloon payment, and (3) that the court should not have awarded any alimony to Candi at all. 

¶39 The court’s valuation of the marital property, the manner in which it distributed that property, and its alimony determination are all subject to the same standard of review. “In divorce actions, a district court is permitted considerable discretion in adjusting the financial and property interests of the parties, and its actions are entitled to a presumption of validity.” Gardner v. Gardner, 2019 UT 61, ¶ 18, 452 P.3d 1134 (quotation simplified). “We can properly find abuse [of the district court’s discretion] only if no reasonable person would take the view adopted by the [district] court.” Goggin v. Goggin, 2013 UT 16, ¶ 26, 299 P.3d 1079 (quotation simplified). 

Accordingly, we will reverse only if (1) there was a misunderstanding or misapplication of the law resulting in substantial and prejudicial error; (2) the factual findings upon which the award was based are clearly erroneous; or (3) the party challenging the award shows that such a serious inequity has resulted as to manifest a clear abuse of discretion. 

Gardner, 2019 UT 61, ¶ 18 (quotation simplified). 

¶40 The court’s decision whether to hold Guy in contempt is also entitled to deference. “The decision to hold a party in contempt of court rests within the sound discretion of the trial court and will not be disturbed on appeal unless the trial court’s action is so unreasonable as to be classified as capricious and arbitrary, or a clear abuse of discretion.” Barton v. Barton, 2001 UT App 199, ¶ 9, 29 P.3d 13 (quotation simplified). 

ANALYSIS 

  1. Operative Dates

¶41 Candi first argues that the court should make the entire divorce decree effective on October 30, 2019, rather than December 31, 2018, since that was the date the court entered the final Amended Decree of Divorce. Alternatively, she asserts that the balloon payment should be due on December 31, 2023, consistent with the terms of the initial Decree of Divorce. However, Candi has not presented us with any substantive arguments in support of this contention. Her argument is essentially that it was unfair to put the Decree of Divorce into effect before the tax laws changed and yet delay the equalization payments until after the Amended Decree of Divorce was entered because both results “favored Guy.” But the fact that a ruling favors one party or the other does not, by itself, make that ruling an abuse of the court’s discretion. In fact, we cannot see any meaningful link between these two rulings—one concerns the effective date of the entire Decree, whereas one concerns the commencement of the payment plan. 

¶42 Moreover, the district court had good reason for both decisions. As Guy pointed out in his Ex Parte Motion for Expedited Entry of Decree of Divorce, “[t]he trial of this matter, and the evidence submitted at trial and considered by the Court, were all predicated on the application of the existing divorce laws.” Thus, entering the Decree of Divorce after the first of the year would have, no doubt, spurred even more objections and additional hearings regarding alimony. Entering the Decree before the law changed was consistent with the parties’ expectations throughout the divorce proceedings. 

¶43 With respect to the equalization payments, the court’s 2019 Supplemental Findings were drastically different from its 2018 Supplemental Findings. The 2018 Supplemental Findings left the equalization payment schedule in Guy’s hands, whereas the 2019 Supplemental Findings required him to pay a specified monthly amount. Leaving the effective date for those payments on December 31, 2023, as outlined in the 2018 Supplemental Findings, would have required Guy to come up with the entire first year’s payments all at once, as he was not required to make monthly or yearly payments under the 2018 Supplemental Findings. The court found it appropriate for the equalization payments to commence at the same time it issued its 2019 Supplemental Findings because it could not “determine who has delayed the payment plan” and it “believe[d] that both parties share the responsibility for the delay in this matter.” Candi has not demonstrated that this was an abuse of the district court’s discretion. 

  1. Access to Marital Estate

¶44 Candi next asserts that the district court should have compensated her for “inequities [that] resulted from Guy’s use of the marital estate” while the divorce was pending. Candi raises three arguments concerning the allegedly unequal access to the marital estate: (1) that Guy was ordered to pay her only $20,000 per month in temporary alimony while he continued to spend around $60,000 per month, (2) that she did not have equal access to the parties’ tangible assets and funds while the divorce was pending, and (3) that Guy spent more on attorney fees out of the marital estate than the $800,000 found by the district court. 

  1. Monthly Spending

¶45 First, Candi contends that it was unfair for the district court to grant her only $20,000 in temporary alimony while Guy had an income of more than $141,000 per month and was spending over $60,000 per month. 

¶46 “Prior to the entry of a divorce decree, all property acquired by parties to a marriage is marital property, owned equally by each party.” Dahl v. Dahl, 2015 UT 79, ¶ 126, 459 P.3d 276; accord Brown v. Brown, 2020 UT App 146, ¶ 23, 476 P.3d 554. “For this reason, it is improper to allow one spouse access to marital funds to pay for reasonable and ordinary living expenses while the divorce is pending, while denying the other spouse the same access.” Dahl, 2015 UT 79, ¶ 126. 

¶47 But this principle does not require that the parties account for every dollar spent out of the marital funds and reimburse one another for any disparity. Rather, it requires that each party have equal access to use marital funds and assets “to pay for reasonable and ordinary living expenses while the divorce is pending.” Id. For this reason, Dahl and Brown are distinguishable from the case at hand. In Dahl, the district court had ordered the wife to repay $162,000 she had received from the husband to pay for her living expenses while the divorce was pending without requiring the husband to repay the marital funds he spent during that time. Id. ¶ 125. The supreme court held that this was an abuse of discretion because it “had the effect of allowing one spouse to use marital funds to pay for living expenses during the pendency of the divorce, while denying such use to the other spouse.” Id. ¶ 129. In Brown, the district court ordered the husband to pay for the wife’s “expenses insofar as they exceeded the income she earned plus amounts [he] advanced while the divorce was pending.” Brown, 2020 UT App 146, ¶ 24. This court found that order to be appropriate because it gave the wife “the benefit of the marital estate to help cover [her] living expenses . . . up until the divorce decree was entered.” Id. ¶¶ 27– 28. 

¶48 Here, the district court ordered Guy to “reimburse” Candi for reasonable monthly expenses “beyond $20,000” unless they were “inappropriate or excessive.” And although Candi indicated that she voluntarily curtailed her spending to avoid fighting for reimbursement, she did not present any evidence that she incurred expenses in excess of the $20,000 Guy provided each month. Since the court ordered Guy to pay for reasonable expenses beyond $20,000, it established a mechanism for Candi to have continued access to the marital estate to pay for her living expenses. The fact that Candi found it too burdensome to request additional funds and was skeptical about Guy honoring her request does not mean she lacked meaningful access to the marital estate.3 And the fact that Guy spent more each month than Candi does not, by itself, indicate that Candi lacked equal access to marital funds while the divorce was pending. Access is not the same as use. And we are aware of no principle requiring that district courts equalize the parties’ use of marital assets during the pendency of a divorce as opposed to reimbursing a party for expenses they incurred as a result of unequal access. 

  1. Tangible Assets

¶49 Our analysis of Candi’s challenge to the unequal use of the parties’ tangible assets is similar to our analysis of her unequal use of funds: she has not demonstrated that she had unequal access to the assets, as opposed to unequal use. It was certainly easier for Guy to use the assets, since they were in his control. And it is undisputed that Guy told Candi she would have to pay the expensive costs associated with using the planes and boats. However, Candi never attempted to use the yacht or plane due to her concerns regarding the expense. Had she done so, she could have requested that Guy reimburse her for these costs in accordance with the court’s temporary alimony award. Since Guy was using the marital assets to pay for the costs of the yacht and plane in addition to meeting his monthly needs, such a request would not have been “inappropriate or excessive.” It is unfortunate that Candi was deterred from taking advantage of this option by the conditions Guy placed on the use of these assets. However, since she did not actually incur the expenses or seek reimbursement for extra expenses from Guy, Candi does not persuade us that the district court should have ordered an increase in her alimony or awarded her more of the marital estate under Dahl or Brown to make up for the disparity in access to the tangible assets. C. Attorney Fees  

¶50 Candi next contends that the district court improperly assessed the attorney fees Guy paid out of the marital estate at only $800,000. This number was taken from Guy’s testimony at trial that he had paid between $700,000 and $800,000 in attorney fees at that point. Candi argues that this estimate was made before Guy paid for the twelve days of trial and post-trial litigation and that “[t]he court should have ordered Guy to disclose all his attorney fees and attributed the full amount to his side.”  

¶51 However, although the Decree of Divorce did not go into effect until the end of 2018, the court valued the parties’ marital estate based on the information before it at trial in 2017. Because this was the “snapshot in time,” see Marroquin v. Marroquin, 2019 UT App 38, ¶ 24, 440 P.3d 757, on which the valuation of the marital estate was based, spending that occurred after that date could not have reduced the overall value of the estate. This means that any funds Guy expended on attorney fees following trial were necessarily post-division expenses. Even assuming that Guy spent more than $800,000 on attorney fees in total— which he likely did, given that the $800,000 accounted only for what he had incurred as of trial—that does not necessarily mean that he paid for those fees out of the marital estate as it existed at the time of trial. He was obligated to pay Candi her share of the estate’s value calculated based on the value proven at trial, regardless of any later spending.  

III. Valuation of the Marital Estate ¶52 Candi argues that the district court made several errors in assessing the overall value of the marital estate. Specifically, she asserts that it failed to account for the value of the notes receivable and that it used the wrong method to assess the value of WBC’s backlog and equipment. She also asserts that Guy dissipated assets and that the estate should have been credited for the dissipation. 

  1. Notes Receivable

¶53 The account ledgers for three of the parties’ entities included line items for loans owed to Guy, totaling $1,059,466. The district court deducted these amounts from the value of those entities in calculating the overall value of the marital estate. However, the notes receivable, owed to Guy, were not counted as an asset of the marital estate. When Candi brought the matter to the court’s attention, it found that “[t]he parties agree that the Court did not consider the three notes receivable” but rejected Candi’s argument on the ground that “[n]either party points to the record regarding this issue.” However, when the 2018 Supplemental Findings, drafted by Guy, addressed the matter, the court’s finding evolved to “all Notes Receivable were included in the valuation of the various marital entities by the parties’ experts.” 

¶54 Candi asserts that the court’s findings are clearly erroneous and that the court therefore erred in refusing to include the notes receivable in the valuation of the marital estate. We agree with Candi that the trial evidence memorializing the accounts payable to Guy constituted record evidence of Guy’s notes receivable with respect to those entities. Thus, the court erred in finding that Candi had not “point[ed] to the record regarding this issue.” Moreover, its finding in the 2018 Supplemental Findings that “all Notes Receivable were included in the valuation of the various marital entities by the parties’ experts” is not supported by the evidence.4 We are aware of nothing in the record indicating that any experts added the notes receivable to the valuation of the marital estate. 

¶55 It was unreasonable for the court to include the accounts payable in its calculation of the other entities’ liabilities without also crediting the notes receivable to Guy as an asset. The only evidence before the court concerning the notes receivable is that contained in the owing entities’ ledgers—that Guy was entitled to receive the funds. Thus, it is necessary for the district court to adjust the value of the marital estate to include the $1,059,466 owing to Guy from the other entities. 

  1. Backlog

¶56 Candi next asserts that the district court erred in assessing the value of WBC’s backlog. She asserts that because WBC is a “viable business,” the court should have recognized that it “has future work lined up and future work yet to come.” Specifically, Candi takes issue with two of the court’s findings relating to the backlog: (1) that “Candi did not provide counter-testimony to” Guy’s witnesses’ “statements of no value in the backlog” and (2) that one of Guy’s witness had “testified that any potential purchaser would not purchase the company based on a backlog.” 

¶57 Candi points to the testimony of her own expert that the backlog would generate a net profit of $3,441,733. She further argues that Guy’s expert’s assertion that the profit would be 

eaten up with administrative costs and capital expenditures relies on a misguided “assumption that WBC would obtain no new work.”5 She points out that such an assumption was faulty, as “WBC had only one negative year in the . . . five-and-a-half years” prior to trial. 

¶58 But Guy’s expert’s opinion that the backlog lacked value did not rely on the assumption that WBC would never get new work, as Candi asserts. Rather, it was based on his assessment that the backlog was not large enough to keep up with administrative expenses the company would need to incur, such as equipment costs, salaries, insurance, etc. Guy’s expert explained that in assessing the value of the backlog, he examined “the general and administrative expenses in the current environment that both a buyer and seller would look at when they’re examining whether or not this backlog has any value.” Based on this examination, he concluded that “the backlog in its current state would start to absorb cash flow from a negative performance during the next eleven months”—in other words, although WBC could expect to earn a gross profit from the backlog, it would have to dip into that profit to make up for its negative cash flow and would therefore not earn a net profit. This concept was further addressed by Guy in his testimony, where he explained that although WBC had a backlog, at the time of the evaluation it did not have as many contracts as it needed, had to lay off workers, and had to rely on capital to continue operating. 

¶59 While Candi’s expert testified that the backlog would generate a net profit of $3,441,733, he did not address the details about anticipated administrative costs or the state of the industry that Guy and his expert addressed in their testimonies, and this seems to be the absent “counter-testimony” to which the court was referring in its finding. Indeed, the court was clearly aware of and considered Candi’s expert’s testimony and valuation, as it included that information in its findings. But it nevertheless concluded that “Candi presented no other evidence or expert testimony in that industry regarding the backlog.” Thus, the court’s finding was not in error. And in any event, it was the court’s prerogative to credit the testimony of Guy’s expert over the testimony of Candi’s expert. See Henshaw v. Henshaw, 2012 UT App 56, ¶ 11, 271 P.3d 837 (“It is within the province of the trial court, as the finder of fact, to resolve issues of credibility.”); see also Barrani v. Barrani, 2014 UT App 204, ¶ 4, 334 P.3d 994 (“Courts are not bound to accept the testimony of an expert and are free to judge the expert testimony as to its credibility and its persuasive influence in light of all of the other evidence in the case.” (quotation simplified)). 

¶60 As to the court’s finding regarding Guy’s witness’s testimony about a potential buyer, while that finding could have been more precise—the witness actually testified that a buyer cares only about a “sustainable backlog” and that a buyer would rely on “the backlog in front” of the company rather than its historic backlog—the imprecision ultimately does not convince us that the court relied on an erroneous assumption. The witness did not testify specifically regarding WBC’s backlog, and his actual statement ultimately supports the district court’s finding regarding the value of the backlog. If the court applied the principle stated by the witness—that only the backlog in front of WBC was relevant—to the testimony it relied on that the backlog would not generate a net profit, the testimony was not inconsistent with the court’s finding that the backlog lacked value. 

¶61 Ultimately, it was within the court’s discretion to accord each party’s expert testimony the weight it deemed proper. And the testimonial evidence presented by Guy and his expert and witness supports the court’s conclusion that the backlog lacked value. Even assuming that WBC was a viable company that would continue to generate contracts, the evidence supported a determination that its current contracts were not sufficient for the company to expect to generate a net profit. 

  1. Equipment

¶62 Next, Candi challenges the district court’s valuation of WBC’s equipment. Her argument rests primarily on her assertion that the court erroneously used “liquidation value” to calculate the value of the equipment rather than valuing WBC as a “going concern.”6  

¶63 First, we agree with Guy that Utah law does not support Candi’s contention that the court was required to evaluate WBC as a going concern. In fact, our case law is clear that courts have broad discretion in determining the proper method for calculating the value of marital property. See DeAvila v. DeAvila, 2017 UT App 146, ¶ 12, 402 P.3d 184 (“District courts generally have considerable discretion concerning property distribution and valuation in a divorce proceeding and their determinations enjoy a presumption of validity.” (quotation simplified)); cf. Griffith v. Griffith, 1999 UT 78, ¶ 19, 985 P.2d 255 (“[T]rial courts have broad discretion in selecting an appropriate method of assessing a spouse’s income and will not be overturned absent an abuse of discretion.”). Moreover, courts may even reject all valuation methods presented by experts and elect to simply split the difference between multiple appraisals. See Newmeyer v. Newmeyer, 745 P.2d 1276, 1278–79 (Utah 1987) (upholding a court’s decision to fix the value of a marital home by splitting the difference between the values presented by two experts); Andrus v. Andrus, 2007 UT App 291, ¶¶ 12–13, 169 P.3d 754 (upholding a district court’s decision to average the value of stock on nine different relevant dates to reach the fair value of stock in the marital estate); Barber v. Barber, No. 961783-CA, 1998 WL 1758305, at *1 & n.1 (Utah Ct. App. Oct. 8, 1998) (holding that the district court acted within its discretion when it valuated a business by averaging four appraisals provided by expert witnesses). 

¶64 Generally, we will uphold a district court’s valuation of marital assets as long as the value is “within the range of values established by all the testimony,” and as long as the court’s findings are “sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Morgan v. Morgan, 795 P.2d 684, 691–92 (Utah Ct. App. 1990) (quotation simplified); see also Weston v. Weston, 773 P.2d 408, 410 (Utah Ct. App. 1989) (upholding a court’s election not to apply a marketability discount to the value of stock in a closely held corporation, despite several experts recommending that such a discount be applied, because the value the court found was “within the range of values established by all the testimony”).7  

¶65 Thus, even assuming that Guy’s expert’s valuation was “liquidation value,” it would have been within the court’s discretion to use that valuation, which was “within the range of values established by all the testimony,” so long as the court adequately supported its decision with factual findings explaining its decision. See Morgan, 795 P.2d at 691–92. Here, not only did the court support its determination with detailed factual findings, but those factual findings make clear that it considered the auction value to represent the fair market value of the equipment, not the liquidation value. 

¶66 In accepting Guy’s expert’s valuation over that of Candi’s expert, the court explained that Guy’s expert was more thorough because he examined each individual piece of equipment and took into account its condition, mileage, and hours. Additionally, the court found it relevant that 80% of Ritchie Brothers’ “sales are directly to end users” and credited the expert’s testimony that their appraisal was based on fair market value, specifically rejecting Candi’s assertion that auction value was equivalent to the value in a “fire sale.” The court also pointed out that even Candi’s expert had used some sales data from auction houses to assess values. Based on this evidence, the court found that “[t]here is no indication that [Guy’s expert’s] evaluation does not reflect the actual marketplace price the parties could expect to receive upon sale” and adopted the $13,890,300 value provided by Guy’s expert. We will not disturb the court’s well-supported decision on this issue.8  

  1. Dissipation

¶67 Candi next contends that “Guy dissipated assets at a time he understood that divorce was likely” and that the district court should have included the value of additional allegedly dissipated assets—over and above the money Guy spent on his girlfriend, which the court considered dissipation and accounted for as such—in its valuation of the marital estate. 

¶68 “Where one party has dissipated an asset, hidden its value or otherwise acted obstructively, the trial court may, in the exercise of its equitable powers, value a marital asset at some time other than the time the decree is entered . . . .” Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (quotation simplified). In other words, “when a court finds that a spouse has dissipated marital assets, the court should calculate the value of the marital property as though the assets remained” and give “the other spouse . . . a credit for his or her share of the assets that were dissipated.” Id. 

¶69 A number of factors may be relevant to this inquiry, including 

(1) how the money was spent, including whether funds were used to pay legitimate marital expenses or individual expenses; (2) the parties’ historical practices; (3) the magnitude of any depletion; (4) the timing of the challenged actions in relation to the separation and divorce; and (5) any obstructive efforts that hinder the valuation of the assets. 

Marroquin v. Marroquin, 2019 UT App 38, ¶ 33, 440 P.3d 757 (quotation simplified). Candi’s dissipation argument concerns three transactions: (1) Guy’s purchase of the yacht, (2) Guy’s investment in FDFM, and (3) Guy’s transfer of assets into the Trust. 

  1. Yacht

¶70 Candi first argues that the district court erred in concluding that the purchase of the yacht was not dissipation. Candi asserts that although the yacht itself remained in the estate, its rapid depreciation meant that it was “cash going out the door for no benefit.” She also argues that because Guy used the yacht and she did not, any benefit from the use of the yacht was individual to Guy rather than to the marital estate. 

¶71 Candi acknowledges that Utah law has not held that the purchase of a depreciating asset constitutes dissipation. But she nevertheless urges us to adopt such a rule, relying on case law from Illinois. However, even if we were inclined to find these cases persuasive, most of them appear to be distinguishable from the case at hand. For example, in In re Marriage of Thomas, 608 N.E.2d 585 (Ill. App. Ct. 1993), the court held that the devaluation of the parties’ business constituted dissipation not simply because it had decreased in value but because the husband had directly undermined the business through “inattention” and “his failure to solicit additional clients or through his outright stealing of clients for his new business.” Id. at 587. In In re Marriage of Schneeweis, 2016 IL App (2d) 140147, 55 N.E.3d 1280, the court upheld a finding of dissipation where the husband had begun making “secretive, risky and progressively more destructive” financial decisions that were “inconsistent with the parties’ prior practices.” Id. ¶ 28 (internal quotation marks omitted). And in In re Marriage of Block, 441 N.E.2d 1283 (Ill. App. Ct. 1982), where the husband had purchased a racing boat that was financially under water, the court held that it could be considered “a debt in dissipation” but clarified that “there would be no net effect on the marital estate” if “the value of the boat is approximately the same as the amount of indebtedness.” Id. at 1288–89.9  

¶72 Here, the court found that the purchase of the yacht was consistent with “Guy’s historical practice” of buying “planes and boats” and that there was no evidence “that Guy caused excessive diminution in value.” Additionally, the court assigned to Guy all responsibility for the outstanding debt on the yacht, so any “debt in dissipation” caused by the yacht’s purchase was resolved, see id. at 1288. While the yacht was used primarily by Guy, he did make it available to Candi, and he never transferred it out of the marital estate. We agree with Guy that the depreciated value of the yacht, alone, does not mandate a finding of dissipation, particularly where its purchase was consistent with purchases made during the marriage and there is no indication that Guy’s actions contributed to the depreciation.10  

  1. North Dakota Investment

¶73 Candi next claims that the district court should have valued FDFM based on the $1,129,000 Guy invested in it rather than its $734,000 value at the time of trial. She asserts that “had Guy not unilaterally made that poor investment, more money would have remained in the estate.” According to Candi, because Guy did not consult her regarding the investment, he “acted obstructively” and should therefore be held accountable for the diminished value of the asset. See Goggin v. Goggin, 2013 UT 16, ¶ 49, 299 P.3d 1079 (quotation simplified). 

¶76 While we agree with Candi that the court could have compensated her for the marital assets put into the Trust had it found dissipation, we do not agree that the court exceeded its discretion in finding that the transfers did not constitute dissipation. The court found that the transfers did not amount to dissipation because Candi had participated in creating the Trust, even though it had not initially been funded; transferring assets to their children was consistent with the parties’ practices during the marriage, beginning as early as 1993; and Candi had deferred to Guy to “run the parties’ finances and estate” throughout the marriage. The court found “no evidence that Guy attempted to withhold information or cut Candi out from the estate planning process.” And while the timing of the transfers could provide circumstantial evidence of dissipation, the parties’ historical practices and the lack of additional evidence suggesting obstructive intent on Guy’s part support the court’s determination that the transfers were not dissipation. 

  1. Division of the Estate and Equalization Payments

¶77 The parties raise various challenges to the district court’s division of the estate and its order regarding the equalization payments. First, Candi asserts that the court erred by not awarding her a greater share of the marital estate directly. Second, she argues that the court erred by refusing to grant her security to help ensure that she actually receives her unpaid share of the estate. Third, both parties challenge the 5% interest rate set by the district court. Finally, Guy argues that the court should have ordered Candi to share in any transaction costs that may be incurred should he be required to liquidate assets to make the equalization payment. 

  1. Estate Division

¶78 Candi argues that the district court abused its discretion by—at least temporarily—awarding Guy the bulk of the estate and giving him five years to pay Candi her share. She argues that instead, the court should have done one or more of the following: (1) ordered Guy to pay Candi her share immediately; 

awarded her a greater share of cash and retirement accounts; 

awarded her the restaurants; (4) ordered Guy to liquidate investments, yachts, planes or spare equipment to pay Candi more cash up front; or (5) ordered larger annual payments in implementing the equalization payment schedule. 

¶79 “When the district court assigns a value to an item of marital property, the court must equitably distribute it with a view toward allowing each party to go forward with his or her separate life.” Marroquin v. Marroquin, 2019 UT App 38, ¶ 27, 440 P.3d 757 (quotation simplified). In situations where the marital estate consists primarily of a single large asset, such as a business or stock, a common acceptable approach for the court to take is to award the asset to one party and make a cash award to the other party. See Taft v. Taft, 2016 UT App 135, ¶ 56, 379 P.3d 890; Argyle v. Argyle, 688 P.2d 468, 471 (Utah 1984). This avoids the necessity for the parties “to be in a close economic relationship which has every potential for further contention, friction, and litigation.” Argyle, 688 P.2d at 471 (quotation simplified). 

¶80 In fashioning this type of marital property division, “a court has the ability to make equitable provisions for deferred compensation”—the keyword being “equitable.” Taft, 2016 UT App 135, ¶ 60. One way to assess the equitability of the provisions is to examine whether the award affords one party “significantly more latitude to go forward with his [or her] separate life” than the other. Id. ¶ 61 (quotation simplified). It is also relevant whether the party required to pay the deferred compensation will be able to use the property to their unfair advantage at the expense of the person to whom the compensation is owed. Id. ¶¶ 59–60. 

¶81 We agree with Guy that the specific division scheme selected by the district court—Guy receiving, on a temporary basis, a larger share of the estate, but with the obligation to make equalization payments to Candi—is not inequitable, so long as adequate security for the unpaid equalization payments is included. See infra Part IV.B. While the court may have been within its discretion to employ one or more of the other methods recommended by Candi, its numerous factual findings support its ultimate determination, and the deferred payment provisions, coupled with security, are sufficiently equitable to fall within its discretion.11  

¶82 Candi asserts that the court’s distribution of marital assets and its use of the equalization payment plan impermissibly gives Guy disproportionate access to the estate. She compares the facts of this case to those in Taft v. Taft, 2016 UT App 135, 379 P.3d 890, in which this court determined that a deferred payment plan that gave the husband discretion to dictate the amount of monthly installments over ten years at a 2.13% interest rate was not equitable. See id. ¶¶ 59–60. Candi argues that just like in Taft, “the overall dynamics of the court’s award more readily allow [Guy], with his immediate ability to use and enjoy the property awarded to him[,] . . . significantly more latitude to go forward with his separate life than [Candi] is afforded.” See id. ¶ 61 (quotation simplified). 

¶83 But Taft is distinguishable from the case at hand. First, the husband in Taft was permitted to decide the amount of the monthly payments to his ex-wife over the course of ten years between the time of the divorce decree and the time the balloon payment was due. See id. ¶ 59. His discretion was so absolute that the court observed he “could conceivably make . . . equal monthly payments of $1 for nine years and eleven months before making the final balloon payment . . . , thereby forcing [his wife] to wait ten years before realizing any real benefit from her property award.” Id. Here, on the other hand, the district court set the terms of the payment plan, ultimately requiring Guy to pay Candi $30,000 per month plus an additional $500,000 per year. Although the court certainly could have ordered Guy to pay more, we are not convinced that the amount ordered was so inequitable as to fall outside the bounds of the court’s discretion. Unlike the wife in Taft, Candi will not have to wait until the balloon payment is due to realize any benefit from her property award. Rather, she will receive $860,000 each year in addition to the $4.7 million she has already received. While this leaves Guy in control of a substantial portion of Candi’s property, she is at least able to benefit from her property award in the meantime. 

¶84 Second, the interest applied to the property distribution in Taft was only 2.13%, an amount this court observed “provides very little incentive for [the husband] to substantially pay it prior to the expiration of the ten-year period, much less for him to pay [the wife] sizeable monthly installments.” Id. ¶ 60. In fact, the low interest rate “would almost certainly allow [the husband] to invest [the wife’s] money elsewhere and reap the benefit of any additional increment of interest—a benefit that in fairness should accrue to [the wife].” Id. In this case, on the other hand, the district court applied a 5% interest rate, which it acknowledged was higher than the statutory postjudgment interest rate, to incentivize Guy to pay Candi sooner. See supra ¶ 31; see also infra Part IV.C. By setting interest at a rate calculated to discourage any delays in paying Candi, the court avoided the type of inequitable deferred payment plan at issue in Taft. 

¶85 We acknowledge that granting Guy a five-year period in which to continue using the bulk of Candi’s property award to grow his business does afford him a benefit that may, to some degree, come at Candi’s expense. But we are convinced that it is not inequitable in light of the entire landscape of the marital estate and property division. First, the size of the parties’ estate and the fact that the bulk of it is wrapped up in WBC means that gathering the liquid funds to pay Candi’s property award is not something that can be accomplished overnight, at least not without substantially decreasing the overall value of the marital estate. Thus, it was reasonable for the court to allow Guy some period of time to gather the funds necessary to pay Candi. Second, this time period may allow Guy to keep his larger businesses intact and find other ways to pay Candi. Keeping the businesses intact will ultimately benefit both parties, as it will allow Guy to maintain his income and continue paying alimony to Candi. Finally, we take Guy’s point that he may incur substantial transaction costs if he ultimately does need to liquidate assets to pay Candi. See infra Part IV.D. Thus, it seems to us that the hypothetical benefit Guy may incur by using Candi’s share of the property to increase the value of the estate will be offset by the hypothetical detriment he could incur if he has to liquidate the assets. Since the court did not order Candi to share in any of these transaction costs, the court’s decision to give Guy the use of Candi’s portion of the property during the five-year forbearance period does not strike us as inequitable, at least so long as adequate security is afforded to Candi.12  

  1. Security

¶86 And this brings us to Candi’s next argument: that the district court abused its discretion by imposing this specific deferred-payment arrangement without requiring Guy to provide adequate security. Candi asserts that the court’s arrangement put her in the position—involuntarily—of an unsecured creditor and posits that no lender would agree to make a $15 million loan without some sort of security interest. Without any type of security, Candi argues, she stands to lose her ability to collect her share of the marital estate in the event Guy passes away before the balloon payment is due or he moves his assets into irrevocable trusts. We agree with Candi and emphasize that the district court’s chosen arrangement passes discretionary muster only if it comes accompanied by an adequate security mechanism. 

¶87 The court’s only justification for declining to grant Candi any type of security was its determination that it could not award a lien against the businesses, that the Uniform Commercial Code did not apply, and that life insurance was not an option due to Guy’s health. But the court did not explain why these limitations prevented it from granting Candi any type of security. Candi’s request was broad: she asserted that “there needs to be some kind of order or security or lien or whatever form it takes . . . that will ensure that those former marital assets are there at the time that . . . the balloon payment needs to be made.” “So all we’re asking for is some kind of order to ensure that there’s going to be payment down the road.” 

¶88 Guy maintains that no security is necessary because he has shown himself to be reliable in making payments and does not have a history of hiding assets. But we agree with Candi that, regardless of Guy’s history, character, or intentions, she should not be required to rely solely on Guy’s continued health and goodwill to ensure her ability to collect what she is owed. Whether Candi’s mistrust of Guy is warranted or not, it was unreasonable for the court not to grant her any type of security in her half of the marital estate. 

¶89 Moreover, Candi has even greater cause for concern in light of Guy’s age and poor health. In fact, Guy expressed concern that he might pass away before the divorce decree was finalized and relied on that possibility to argue that the divorce action should be bifurcated. Should Guy pass away before the balloon payment is due, Candi would no longer have even the benefit of Guy’s goodwill. Instead, she would have to further litigate with his heirs (including her own children) to fight for her share of the marital estate. It is hard to reconcile why the district court considered this to be an adequate legal remedy. Candi should not have to take her chances as an unsecured creditor should Guy pass away before she can receive her share of the marital estate. No reasonable creditor would agree to a forbearance on such terms, and it was therefore inequitable to impose such terms on Candi. 

¶90 Accordingly, we remand this case for the court to fashion an equitable security interest that will adequately protect Candi’s ability to collect her remaining share of the marital estate at the end of the five-year forbearance period. 

  1. Interest Rate

¶91 Both Guy and Candi take issue with the 5% interest rate the district court imposed on the equalization payments. Guy asserts that the interest rate should have been set at the statutory postjudgment interest rate, which was 4.58% at the time the court entered the 2019 Supplemental Findings. Candi argues that the court should have imposed the 10% interest rate originally set in its 2018 Supplemental Findings. We reject both parties’ arguments and affirm the district court’s imposition of the 5% interest rate. 

¶92 Guy asserts that the court was bound by the postjudgment interest rate established by section 15-1-4 of the Utah Code, which provides that “final civil . . . judgments of the district court . . . shall bear interest at the federal postjudgment interest rate as of January 1 of each year, plus 2%.” Utah Code Ann. § 15-1-4(3)(a) (LexisNexis Supp. 2021). Section 15-1-4 does apply to orders in a divorce case “in relation to the children, property and parties.” See Marchant v. Marchant, 743 P.2d 199, 207 (Utah Ct. App. 1987) (quoting Utah Code Ann. § 30-3-5(1) (1984) (current version at id. (LexisNexis Supp. 2021) (stating that the district court “may include in the decree of divorce equitable orders relating to the children, property, debts or obligations, and parties”))). However, section 15-1-4 provides the “minimum interest allowable.” Id. (emphasis added). The statute “does not preclude a District Court, under [section 30-3-5] from imposing an interest rate of more than [the statutory postjudgment rate] where, under the circumstances, that award is reasonable and equitable.” Stroud v. Stroud, 738 P.2d 649, 650 (Utah Ct. App. 1987) (quoting Pope v. Pope, 589 P.2d 752, 754 (Utah 1978)). And, in fact, setting equalization payments at the postjudgment interest rate, rather than a higher rate, may be an abuse of discretion if doing so is inequitable under the circumstances. See Taft v. Taft, 2016 UT App 135, ¶¶ 56, 60, 379 P.3d 890 (finding a 2.13% interest rate, which was the rate provided by Utah Code section 15-1-4 at the time, to be insufficient where the husband was granted discretion to determine the amount of payments over the course of ten years because it incentivized the husband to invest the wife’s money elsewhere rather than paying her sooner). Thus, we find no merit to Guy’s contention that the court was bound to apply the default postjudgment interest rate to the equalization payments. 

¶93 Candi argues that an interest rate higher than the 5% ordered by the court is necessary to “compensate Candi for her unwilling forbearance to Guy and incentivize Guy to pay quicker.” She argues that 10% is an appropriate interest rate because it is consistent with the Utah Code’s default interest rate for a “forbearance of any money, goods, or services.” Utah Code Ann. § 15-1-1(2) (LexisNexis Supp. 2021). However, Candi has not provided us with any authority suggesting that the court was required to impose this specific interest rate. 

¶94 The court’s decision to impose the 5% interest rate was reasoned and supported by sufficient factual findings. The court explained that it had considered the 10% interest rate to be “appropriate” when the court had “deferred to Guy to come up with an appropriate payment plan.” The court opined that had Guy been permitted to set the payment schedule, as the husband in Taft was, the 10% interest rate would have been needed to avoid giving Guy “an incentive to invest the money and reap the return instead of paying off” Candi. The court explained that once it set the payment plan, rather than leaving it to Guy’s discretion, it did not believe the 10% interest would be valid under Taft. Nevertheless, it also explained that the interest rate was not a postjudgment rate because the deferred payment was more akin to a forbearance, and it still wanted to give Guy “an incentive to pay the Equalizing Balance quickly.” 

¶95 Our case law is clear that as with other aspects of property division, equitability is the standard for evaluating the appropriateness of an interest rate set by the district court for deferred payments in a divorce. See Olsen v. Olsen, 2007 UT App 296, ¶ 25, 169 P.3d 765 (“The overriding consideration is that the ultimate division be equitable . . . .” (quotation simplified)). We are not convinced that the 5% interest rate fell outside the reasonable range of equitable interest rates the court could have selected. Moreover, the court clearly explained its reasoning. Thus, we will not disturb the 5% interest rate the court set. 

  1. Transaction Costs

¶96 Finally, Guy asserts that the district court should have required Candi to share in any transaction costs that he may incur in the event he needs to liquidate assets to pay off Candi’s share of the marital estate. He points out that taxes and other transaction costs associated with liquidating the businesses or any other large assets could be significant and that if the court does not require Candi to pay her portion of those transaction costs, it could substantially eat into his portion of the marital estate. 

¶97 We do not disagree with Guy that if he is forced to liquidate assets, doing so may result in significant taxes and transaction costs to him. But it is by no means certain that such costs will be incurred. We do not generally expect courts to “speculate about hypothetical future [tax] consequences.” See Alexander v. Alexander, 737 P.2d 221, 224 (Utah 1987) (refusing to reduce the value of a “stock-price-tied profit-sharing plan to account for tax liability” because the imposition of taxes was not certain); see also Sellers v. Sellers, 2010 UT App 393, ¶ 7, 246 P.3d 173 (holding that the district court was not required to consider potential tax obligations associated with a retirement account because the tax consequences were “speculative” and assumed “massive withdrawals” from the account); Howell v. Howell, 806 P.2d 1209, 1213–14 (Utah Ct. App. 1991) (holding that the district court “did not err in refusing to adjust property distribution because of . . . theoretical [tax] consequences” of selling a second home). The valuation of marital property “is necessarily a snapshot in time,” Marroquin v. Marroquin, 2019 UT App 38, ¶ 24, 440 P.3d 757, and such a moment does not consider “the myriad situations in which the value of [the parties’] property might be positively or negatively affected in the future,” Sellers, 2010 UT App 393, ¶ 7. 

¶98 Moreover, excessive transaction costs were the very thing the equalization payments were intended to prevent. The court acknowledged that forcing the parties to immediately liquidate assets would significantly cut into the pie that would be available to divide between both parties. That is why the court awarded the bulk of the estate to Guy and gave him five years to pay Candi her portion. The court gave him unfettered discretion to determine how to gather the funds necessary to pay Candi. In doing so, it gave Guy free rein over the bulk of Candi’s share of the estate, which he may use to continue building his businesses and wealth over the next five years. The benefit he may derive from using Candi’s share of the estate may very well amount to much more than the interest Candi will receive at the 5% rate, which is all she will have access to until the balloon payment is due, yet she will not share in that benefit any more than she will share in any transaction costs Guy may incur.13 See supra ¶ 85. The entire principal of Candi’s portion will remain in Guy’s control until he makes the balloon payment at the end of 2024. 

Furthermore, because the assets are in Guy’s control, Candi will have no role in deciding how to liquidate the assets or which transaction costs to incur.14  

¶99 Given the speculative nature of the potential taxes and transaction costs, as well as the full discretion Guy was given to determine whether and how to liquidate assets, it was not an abuse of discretion for the court not to order that Candi share in those costs. 

  1. Alimony

¶100 The next set of challenges the parties raise concerns the district court’s award of alimony to Candi. Guy asserts that the court exceeded its discretion in awarding any alimony whatsoever. Candi, on the other hand, asserts that the court should have increased the alimony award to account for her tax burden. She also argues that the court should have required Guy to either obtain life insurance or provide some other security to ensure that she would receive her alimony payments if he were to pass away. 

  1. Alimony Award

¶101 Guy argues that the district court should not have awarded alimony to Candi because (1) she did not provide the court with sufficient evidence from which it could calculate her monthly needs and (2) Candi’s property settlement was sufficient to allow her to support herself. In support of both arguments, Guy primarily relies on our supreme court’s holding in Dahl v. Dahl, 2015 UT 79, 459 P.3d 276. But Dahl neither automatically requires a court to deny a request for alimony in the absence of documentation nor prevents the court from awarding alimony to a spouse who receives a large property settlement. 

¶102 With respect to documentation of need, the Dahl court held only that the district court “acted within its discretion in denying” the wife’s alimony request when she failed to provide evidence supporting her claimed need, not that the district court was required to deny her request. Id. ¶ 117. In fact, the court explicitly acknowledged that “the district court could have . . . imputed a figure to determine [the wife’s] financial need based either on [the husband’s] records of the parties’ predivorce expenses or a reasonable estimate of [the wife’s] needs.” Id. ¶ 116 (emphasis added). Furthermore, we have previously considered and rejected the “assertion that failure to file financial documentation automatically precludes an award of alimony.” Munoz-Madrid v. Carlos-Moran, 2018 UT App 95, ¶¶ 8–9, 427 P.3d 420. “[A]lthough [Candi’s] expenses may have been difficult to discern because she failed to provide supporting documentation . . . , there was not a complete lack of evidence to support their existence.” See id. ¶ 10. Indeed, the court explained that it relied on the list of items in the standard financial declaration, Guy’s financial declaration, evidence concerning the parties’ spending during the marriage, and evidence of Candi’s expenses during the pendency of the divorce to calculate Candi’s reasonable monthly needs. 

¶103 Dahl also does not stand for the proposition that alimony should never be awarded to those who receive a large property settlement. Rather, Dahl merely states that receiving “a sufficiently large property award to support a comfortable standard of living” prevented “any serious inequity” from arising due to the court’s decision not to impute the wife’s need in the face of her lack of evidence. See 2015 UT 79, ¶ 116 (quotation simplified). We acknowledge that if the payee spouse has income-producing property, the income from that property “may properly be considered as eliminating or reducing the need for alimony by that spouse.” Mortensen v. Mortensen, 760 P.2d 304, 308 (Utah 1988); see also Batty v. Batty, 2006 UT App 506, ¶ 5, 153 P.3d 827 (holding that the evaluation of a payee spouse’s ability to meet his or her own needs “properly takes into account the result of the property division, particularly any income-generating property [the payee spouse] is awarded”); Burt v. Burt, 799 P.2d 1166, 1170 n.3 (Utah Ct. App. 1990) (explaining that courts should distribute property before fashioning an alimony award, so they can take into account income generated from property interests). Nevertheless, the court in this case did not abuse its discretion by awarding alimony despite Candi’s large property settlement. 

¶104 Although Candi was entitled to receive a large settlement eventually, Guy continued to control the bulk of the parties’ marital estate and would do so for the next five years. The court noted this in its determination regarding alimony, observing that “alimony was needed” because “Guy was unable to pay Candi the full value of the marital estate at this time.” The court refused to take into account income Candi may derive from her portion of the marital assets in the future because that analysis was “too speculative for the Court to consider.”15 However, it observed that “at such time as . . . Candi . . . receives income or other assets from her share of the marital estate, or from other sources, the Court will evaluate the amount, if any, by which those amounts may reduce her unmet financial needs and thereby reduce or eliminate Guy’s alimony obligation.” Thus, the court did not abuse its discretion in awarding Candi alimony, and any income she derives from the property settlement may be considered when she actually has control of that property. 

  1. Taxes

¶105 On the other hand, Candi argues that the district court should have included her tax liability on alimony in its calculation of her needs. In calculating both a payor spouse’s ability to pay and a payee spouse’s needs, courts are generally expected to consider the person’s tax liability. See McPherson v. McPherson, 2011 UT App 382, ¶ 14, 265 P.3d 839; Andrus v. Andrus, 2007 UT App 291, ¶¶ 17–18, 169 P.3d 754. In particular, it is plain error for a court to consider the tax consequences for one party in assessing their income and expenses but not for the other party. Vanderzon v. Vanderzon, 2017 UT App 150, ¶¶ 45, 58, 402 P.3d 219. 

¶106 In its findings, the court used Guy’s net income to assess his ability to pay alimony. However, because Candi did not present evidence of her tax burden on any alimony award, the court did not consider her tax burden in assessing her need. We acknowledge that the court’s ability to estimate Candi’s taxes was hampered by Candi’s failure to provide evidence of her anticipated tax liability. Nevertheless, it is certain that she will incur some tax burden, particularly in light of the fact that she will be taxed on any alimony payments she receives.16 And we agree with Candi that it was inequitable for the court to consider Guy’s tax burden when calculating his ability to pay without considering Candi’s tax burden in assessing her needs. Thus, we remand the court’s alimony award for the limited purpose of having the court make findings as to Candi’s projected tax burden and adjust the alimony award accordingly. 

  1. Life Insurance

¶107 Next, Candi asserts that the district court should require Guy to either obtain life insurance or provide a substitute for life insurance to secure his alimony payments. She points out that the court initially stated in its 2017 Findings that “Guy should provide a life insurance policy for Candi to cover alimony for a period of time sufficient to cover his obligation should he unexpectedly pass away.” Although the court initially rejected Guy’s argument that he should be required only to “use his best efforts to obtain life insurance,” the court ultimately adopted Guy’s proposed language in its 2018 Supplemental Findings stating that “there was no information as to whether or not Guy could or could not obtain a life insurance policy for such purpose nor the cost thereof.” Candi asked the court to reconsider that finding and make the life insurance requirement mandatory. However, the court rejected that request and stated that its finding in the May 2018 Order was “sufficient.” But while that finding indicated the court’s intent “to ensure that Candi will receive the money awarded should [Guy] pass unexpectedly,” it did not definitively decide the issue of whether Guy was required to obtain life insurance to secure his alimony obligation or if he was able to demonstrate an inability to comply with the court’s direction. We are left wondering whether the court did, or did not, order Guy to obtain life insurance and are unable to ascertain the answer to this question from the court’s rulings. Accordingly, we remand this issue to the district court to clarify its order.17  

  1. Contempt

¶108 Finally, Candi argues that the district court erred in declining to hold Guy in contempt for violating the Stipulation, which the parties reached early on in the proceedings, that they would not “sell, gift, transfer, dissipate, encumber, secrete or dispose of marital assets” but that Guy could continue to manage WBC and conduct business “as he has in the past, which may include incurring debt, paying expenses and acquiring assets.” “As a general rule, in order to prove contempt for failure to comply with a court order it must be shown that the person cited for contempt knew what was required, had the ability to comply, and intentionally failed or refused to do so.” Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988). In a civil contempt proceeding, these elements must be proven “by clear and convincing evidence.” Id. 

¶109 Candi asserts that the Stipulation’s language allowed Guy to engage in business transactions only insofar as those transactions related to WBC. She argues that the “business hereinabove identified” language in the Stipulation is limited to “the management and control of” WBC and that the court therefore misread the Stipulation by not holding Guy in contempt for any transactions that were not directly related to WBC. But as Guy observes, the Stipulation also allowed the parties to engage in transactions “in the course of their normal living expenditures, ordinary and necessary business expenses and to pay divorce attorneys and expert fees and costs.” 

¶110 “We interpret language in judicial documents in the same way we interpret contract language,” that is, “we look to the language of the [document] to determine its meaning.” Cook Martin Poulson PC v. Smith, 2020 UT App 57, ¶ 24, 464 P.3d 541 (quotation simplified). We consider Guy’s reading of the Stipulation to be more consistent with the plain language of that document. The provision giving Guy “the right to conduct the business hereinabove identified as he has in the past, which may include incurring debt, paying expenses and acquiring assets,” properly refers to both the operation of WBC and normal living and business expenses. 

¶111 Moreover, because contempt requires that the party knew what was required and intentionally refused to comply, see Von Hake, 759 P.2d at 1172, “for a violation of an order to justify sanctions, the order must be sufficiently specific and definite as to leave no reasonable basis for doubt regarding its meaning,” Cook, 2020 UT App 57, ¶ 26 (quotation simplified). Even were we inclined to agree with Candi’s more limited interpretation, we could not say that the language is so clearly limited to WBC that there could be “no reasonable basis for doubt regarding its meaning.” See id. (quotation simplified). 

¶112 The Stipulation allowed Guy to continue conducting normal transactions as he had in the past, and the district court found that “the transactions Candi complains of were consistent with Guy’s historical practice of transferring assets from one entity to another or from one form into another” and that there was “no indication that [they] . . . were out of the ordinary.” Candi does not challenge this finding. Thus, we conclude that the court did not exceed its discretion in declining to find Guy in contempt. 

CONCLUSION 

¶113 We conclude that the district court erred in failing to credit the value of the notes receivable to the marital estate. We also conclude that it erred in refusing to grant Candi a security interest to protect her right to receive her unpaid share of the marital estate. However, we affirm the district court’s property valuation and distribution in all other respects. 

¶114 As to the alimony award, we conclude that the district court erred in failing to account for Candi’s tax obligation in its calculation of her need and remand for clarification of whether the court intended to order Guy to obtain security on Candi’s alimony award. We affirm the alimony award in all other respects. 

¶115 We also affirm the remaining orders and findings challenged on appeal, including the operative date of the Decree of Divorce, the equalization payment schedule, the court’s finding that Guy did not dissipate marital assets apart from the money he spent on his girlfriend, and its decision not to hold him in contempt. 

¶116 Consistent with our discussion in this opinion, we remand to the district court to adjust the marital property valuation, to make findings regarding Candi’s tax liability and adjust the alimony award, to clarify whether Guy is must obtain security on Candi’s alimony award, and to enter orders necessary to adequately secure Candi’s interest in her unpaid share of the marital estate. 

_________ 

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

http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Wadsworth v. Wadsworth20220113_20190106_5.pdf 
 
http://www.utcourts.gov/opinions/view.html?court=appopin&opinion=Wadsworth v. Wadsworth20220113_20200430_5.pdf

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How do I best explain to my daughters that I am divorcing their stepmom?

What is the best way for me to explain to my 3 daughters that the reason in which I am divorcing their Assistant Prosecutor stepmother is because I wouldn’t let her legally adopt them and that I had an affair with one of her former friend’s?

I realize that there may be more to your question and its context than the question itself may indicate. I realize you may or may not be the only one to blame for the deterioration of your marriage. 

Do right by both your children and your wife. Resist the temptation to “correct” one mistake by making others in an effort to cover for past wrongs you have committed. 

I’d speak with a good (a good) psychologist or qualified counselor to help me confront how and why I came to this point and how my family did. I’d seek some help to understand what I should do going forward and why I should do so, how I should and can take responsibility for my actions in the past and for the future. 

I’d speak with a good (a good) child psychologist to gain an understanding of how to break this kind of news to your children and how to discuss any questions your children may have. 

I’d speak with my pastor or priest (or whoever your religious leader may be) to get some guidance as well. 

I’d be sure to be honest with my children, in a way that is sensitive to their age and maturity and needs. 

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

https://www.quora.com/What-is-the-best-way-for-me-to-explain-to-my-3-daughters-that-the-reason-in-which-I-am-divorcing-their-Assistant-Prosecutor-stepmother-is-because-I-wouldn-t-let-her-legally-adopt-them-and-that-I-had-an-affair-with/answer/Eric-Johnson-311  

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What are legitimate ways to contradict a witness in the court?

If you are asking whether there are “legitimate” ways to make truthful witness look inaccurate or dishonest (meaning there are ways to do it that won’t get you in trouble), there are tricks that may and often do work to bring about such a result. Damn you to hell if you employ any such tricks, but here are some that I am aware of (which I share with those of you who are about to be questioned by unscrupulous attorneys and/or judges who are trying to discredit you—forewarned is forearmed): 

When cross-examining the witness: 

  1. Overstate, understate, and otherwise outright misstate the witness’s testimony in your questioning (put words in the witness’s mouth), yet make it seem to the witness that you are simply trying to summarize or rephrase the testimony accurately. This way you mischaracterize the witness’s testimony yet you may dupe the witness into “agreeing” that your summary/rephrasing is accurate. 
  2. Ask questions that embarrass, humiliate, and upset the witness, so that the witness responds rudely and by arguing with and insulting you. Imply that the witness is bigoted and a hypocrite. Either way or both ways, you hope that the judge and jury will reject the witness’s testimony on that basis, not on the basis of whether the witness is honest. 
  3. Ask the witness bogus questions that sound as though they are plausibly based upon truth but that you know the witness will deny as false. Done “well”, this technique of eliciting repeated denials creates the false impression that the witness must be lying about something because the lawyer cross examining the witness couldn’t possibly be asking so many questions without the witness acknowledging at least some of them to be true.

 

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

 

https://www.quora.com/What-are-legitimate-ways-to-contradict-a-witness-in-the-court/answer/Eric-Johnson-311  

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Do courts make awards in divorce to “punish” adultery?

Do courts make awards in divorce to “punish” adultery? Great question.  

Adultery is considered a fault-based ground for divorce and a factor that can be considered when the trial court decides matters of alimony, property division, and child custody.  

I will answer this question according to what Utah statutory and case law provides.  

Utah Code § 30-3-5(9)(b) provides, “The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.”  

Utah Code § 30-3-5(9)(c) states that “‘Fault’ includes engaging in sexual relations with an individual other than the party’s spouse, if such wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship.  

Most recently, the Utah Supreme Court discussed this very question in the divorce case of Gardner v. Gardner (Volume 425 Pacific Reporter 3rd, page 1134, decided in 2019. In that decision the Supreme Court stated: 

[C]ourts should keep in mind that the ultimate purpose of any property division or alimony award is to “achieve a fair, just, and equitable result between the parties.” For this reason, courts should consider fault only in an attempt to balance the equities between the parties. In other words, where one party’s fault has harmed the other party, the court may attempt to re-balance the equities by adjusting the alimony award in favor of the party who was harmed by that fault.[footnote 56] 

Footnote 56 states: 

We note that some Utah courts have struggled to articulate an appropriate role of fault in alimony determinations in light of our case law suggesting that the purpose of alimony is not to punish. See Mark v. Mark, 2009 UT App 374, ¶ 17, 223 P.3d 476 (“[I]f a trial court uses its broad statutory discretion to consider fault in fashioning an alimony award and then, taking that fault into consideration, adjusts the alimony award upward or downward, it simply cannot be said that fault was not used to punish or reward either spouse by altering the award as a consequence of fault.”). But other Utah courts have concluded that fault may be considered without constituting punishment if it is used only to rectify the inequity caused by the fault. See Christiansen v. Christiansen, 2003 UT App 348, 2003 WL 22361312 at *2 (“Fault may correctly be considered by the trial court without penalizing the party found to be at fault.”); see also [Wilson v. Wilson, 5 Utah 2d 79, 296 P.2d 977, 979 (1956)], 296 P.2d at 980 (explaining that equitable factors often cause courts to impose permanent alimony on “erring” spouses); [Riley v. Riley, 138 P.3d 84 (Utah Ct. App. 2006)], 2006 UT App 214, ¶ 24, 138 P.3d 84 (affirming the district court’s consideration of a husband’s fault as an important “factor in fairness to [Wife]” (alteration in original)). As this latter line of cases suggests, fault may be considered as long as it is used as a basis to prevent or rectify an inequity to the not-at-fault spouse. So in reviewing an alimony determination involving fault, Utah appellate courts should focus on whether a fault-based modification of an alimony award helped “achieve a fair, just, and equitable result between the parties” rather than on whether it was punitive in nature. [Dahl v. Dahl, 2015 UT 79, ¶ 168, ––– P.3d ––––], 2015 UT 79, ¶ 25, ––– P.3d –––– (citation omitted) (internal quotation marks omitted). 

With this in mind, could a court (a court, not all courts) award more alimony, divide marital property unevenly, or restrict custody or parent-time due to one of the spouse’s adultery to punish adultery? Yes, of course, even if the court went to great pains (sincerely or not) to articulate the alimony decision as not being punitive in nature.  

Some judges (some, not all) allow their personal antipathy for an adulterous spouse their impartiality and justify disregarding the law in favor of doing what the judge “feels is right” instead. And yes, it can happen to you. 

Bottom line: If you are in adulterer, and a serial and/or un repentant adulterer at that, it should come as no surprise to you that your adultery will do you no favors when it comes to the way the court can and may treat you in a divorce action. Fair or not, that is the nature of the way many people (and judges are people) view and treat adulterers. Does this mean that if you are in adulterer you should expect to be treated unfairly by a court? I think your odds are about 50-50, in my professional opinion. Do those odds mean that you should lie about adultery, if you believe you can get away with it? No, and for two reasons: 1) it is wrong to lie; and 2) if you commit adultery, then compound the problem by lying about it and get caught, you only increase your odds of being mistreated by the court. And odds are that if you lie about adultery you will be caught. 

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

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What are the grounds for filing for a divorce in Utah?

First, you need to understand that Utah, like every other state in the U.S. has what are known as a “no-fault divorce law”. No-fault divorce means that you don’t have to plead or show that your spouse committed any kind of marital “fault” to obtain a divorce. Previous to the creation of no-fault divorce laws, you could not get a divorce unless you could prove your spouse had committed one or more of the recognized faults constituting grounds for divorce.  

Utah’s no-fault ground for divorce is the “irreconcilable differences of the marriage” basis (Utah Code § 30-3-1(h)). If you assert irreconcilable differences as your ground for divorce, you do not have to prove any kind of fault to obtain a divorce on that ground. Because it doesn’t matter whether your spouse wants a divorce too– you can prove that there are irreconcilable differences of the marriage by simply saying that you subjectively feel that there are irreconcilable differences. Sometimes a court might ask you to explain in more detail what the irreconcilable differences in your marriage are, but courts will accept something as simple and ambiguous statements like “we are not compatible anymore” or “our differences prevent the marriage from continuing” or “our differences have rendered the marriage unsalvageable”.  

Fault-based grounds for divorce still exist, which means that one can still assert one or more of these faults as grounds for divorce, but it’s not necessary to assert fault-based grounds to obtain a divorce. 

I have provided for you below Section 30-3-1 of the Utah Code, which articulates both the no-fault ground and all the other legally recognized grounds for divorce in Utah. 

Utah Code § 30-3-1.  Procedure — Residence — Grounds. 

(1) Proceedings in divorce are commenced and conducted as provided by law for proceedings in civil causes, except as provided in this chapter. 

(2) The court may decree a dissolution of the marriage contract between the petitioner and respondent on the grounds specified in Subsection (3) in all cases where the petitioner or respondent has been an actual and bona fide resident of this state and of the county where the action is brought, or if members of the armed forces of the United States who are not legal residents of this state, where the petitioner has been stationed in this state under military orders, for three months next prior to the commencement of the action. 

(3) Grounds for divorce: 

(a) impotency of the respondent at the time of marriage; 

(b) adultery committed by the respondent subsequent to marriage; 

(c) willful desertion of the petitioner by the respondent for more than one year; 

(d) willful neglect of the respondent to provide for the petitioner the common necessaries of life; 

(e) habitual drunkenness of the respondent; 

(f) conviction of the respondent for a felony; 

(g) cruel treatment of the petitioner by the respondent to the extent of causing bodily injury or great mental distress to the petitioner; 

(h) irreconcilable differences of the marriage; 

(i) incurable insanity; or 

(j) when the husband and wife have lived separately under a decree of separate maintenance of any state for three consecutive years without cohabitation. 

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

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I suspect my husband fathered a child with someone else. Can I challenge our divorce ruling?

If I suspect my ex-husband fathered a child with someone else while we were married, can I challenge our divorce ruling?

If, by this question, you mean that

  1. you are the wife; and
  2. you discovered, after you divorced, that your husband had fathered a child during the marriage, but this fact was not known or adjudicated during the divorce proceedings,

it is unlikely that raising the discovery of the bastard/illegitimate (whatever term you want to use to describe the innocent) child would benefit you as the wife, if you tried to assert the discovery of this child as the basis for “challenging” or modifying the terms of the decree of divorce. Why? Because unless you could show that the discovery of this child has led to the discovery that the terms of your decree of divorce are unfair to you and would have been different had the court been aware of and taken the child’s existence into consideration when entering the orders that comprise your decree of divorce, discovery of the child may be irrelevant.

However, it may be worth your while to raise the discovery of this child with the divorce court, if for no other reason than to protect yourself from being deemed the child’s mother, given that the child was born, or at least conceived, during your marriage because it is possible for your husband to claim that the child is now your legal responsibility.

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

https://www.quora.com/If-I-suspect-my-ex-husband-fathered-a-child-with-someone-else-while-we-were-married-can-I-challenge-our-divorce-ruling?__nsrc__=4

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Would you tell someone that his/her spouse is cheating?

Would you tell someone that his/her spouse is cheating?

First, I need to make clear that my answer is in my capacity as just a member of the public. If a client of mine (I am a divorce attorney) was having an extramarital affair and disclosed this to me in my capacity as his/her attorney, I would be prohibited from notifying my client’s spouse of my client’s infidelity).

Second, let’s get two definitions down: 1) cuckold: a husband of an adulterous wife; and 2) cuckquean: a wife with an adulterous husband.

The question: Would you tell someone that his/her spouse is cheating?

My answer: If I knew it and could provide independently verifiable evidence of it, yes, I would. It may not be welcome news (to say the least) to the cuckold/cuckquean, but he/she does not deserve to be fooled and humiliated, potentially robbed of family resources spent on the paramour, and potentially placed at risk of contracting a sexually transmitted disease by being kept in the dark. It appears clear to me that I have a moral duty to notify the cuckold/cuckquean when I have the power to take steps to protect him/her and the family’s children. The truth may hurt, but ignorance will hurt even more.

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

https://www.quora.com/Would-you-tell-someone-that-their-husband-is-cheating/answer/Eric-Johnson-311?prompt_topic_bio=1

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What happens after an affair when you have kids?

What happens after an affair when you have kids? I will answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you have had an extramarital affair, it generally will not do your divorce case any favors, will not win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what Utah Code § 30-3-5(9)(c)) provides:

“The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony” and “”Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship: engaging in sexual relations with an individual other than the party’s spouse[.]”

What does this mean?

The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)): “Substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce.

So, when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce. And this: “Under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.”

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

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What happens after an affair when you have kids?

What happens after an affair when you have kids?

I’ll answer as if this question were asked in the belief that the affair will have a profound effect upon child custody, child support, and/or alimony.

If you’ve had an extramarital affair, it generally won’t do your divorce case any favors, won’t win you any sympathizers.

But will it generally result in you being “punished” by the divorce court? The answer to that question is, in my experience as a divorce lawyer: probably not (unless your affair could be shown to have done your spouse and kids egregious financial, physical, or emotional harm) and/or you were a serial, unrepentant adulterer/adulteress).

Child custody: in the jurisdiction where I practice divorce law (Utah), it has been my experience that extramarital affairs are rarely seen as rendering a parent “unfit” to exercise sole or joint custody of his/her children.

While the court is required to consider “the past conduct and demonstrated moral character of the parent” (Utah Code § 30-3-10(2)(d)) in making its child custody evaluation and award, usually the court will reason that an adulterous parent is not inherently any worse as a parent than one who is not.

If the affair cause the parent to spend excessive time away from the children, caused the parent to neglect the children, or if the children’s knowledge of the affair caused the children serious psychological or emotional harm and/or the children distrust or hate a parent because of the affair, then it’s not really the affair that is the problem itself, but the effects of the extramarital affair.

Child support: I have never seen an extramarital affair cited as a reason for awarding more or less child support had the child support payor not committed adultery.

Alimony: in Utah (where I practice divorce law), adultery can affect the alimony award, but will not automatically have an effect on the alimony award. Here is what the Utah Code contains:

(b) The court may consider the fault of the parties in determining whether to award alimony and the terms of the alimony.

(c) “Fault” means any of the following wrongful conduct during the marriage that substantially contributed to the breakup of the marriage relationship:

(i) engaging in sexual relations with an individual other than the party’s spouse[.]

(See Utah Code § 30-3-5(9)(c))

What does this mean? The Utah Supreme Court construed that section of the Utah Code in the case of Gardner v. Gardner (2019 UT 61, 452 P.3d 1134 (Supreme Court of Utah 2019)):

¶ 26 As with harm in a negligence case, a “great number of events” may have contributed to a divorce. In fact, we have previously recognized “that it is seldom, perhaps never, that there is any wholly guilty or wholly innocent party to a divorce action.” So in almost all divorce cases, it could be argued that each spouse contributed in some way to the breakup of the marriage. But some causes are clearly more substantial, or significant, than others. So even though it may be impossible to state with certainty a sole, or even the first, cause leading to the breakup of the marriage, it will certainly be possible in many cases for a court to determine the significant or important causes of the divorce.

¶ 27 Accordingly, we conclude that “substantially contributed” to the breakup of the marriage is conduct that was a significant or an important cause of the divorce. Under this definition, conduct need not be the sole, or even the most important, cause for it to substantially contribute to a divorce. So when an important or significant cause falls into a category of conduct specifically identified in section 30-3-5(8), courts are authorized to consider it in an alimony determination, even if the at-fault party can point to other potential causes of the divorce.

*****

¶ 53 Section 30-3-5(8)(a) requires district courts to consider the financial situations of both spouses as part of its alimony determination. Additionally, section 30-3-5(8)(e) urges district courts to “look to the standard of living, existing at the time of separation, in determining alimony in accordance with Subsection (8)(a),” and section 30-3-5(8)(f) provides that the “court may … attempt to equalize the parties’ respective standards of living.” Together these provisions codify the default rules that an alimony award should be crafted to “provide support for the [receiving spouse] as nearly as possible at the standard of living [he or] she enjoyed during marriage,” and, “to the extent possible,” to “equalize the parties’ respective standards of living.”

¶ 54 As we have explained, these default rules tend to further the court’s aim of achieving “a fair, just, and equitable result between the parties” because they typically put the parties in the best possible position to “reconstruct their [separate] lives on a happy and useful basis.” So the economic factors, and the general aim of placing the parties in the same position they enjoyed during the marriage, stand as an important starting point in any alimony determination.

¶ 55 But section 30-3-5(8) also provides courts the flexibility and discretion to depart from these default rules in certain situations where fairness demands. For example, in addition to the economic factors listed in section 30-3-5(8)(a), section 30-3-5(8)(b) also authorizes courts to consider “the fault of the parties in determining whether to award alimony and the terms of the alimony.” So the statute expressly provides district courts with the discretion to consider fault in determining whether to award alimony, as well as in determining the terms—the amount and length—of the alimony award.

¶ 56 Section 30–3–5 also provides guidance for how a court may adjust the amount and length of an alimony award in the event the court determines that one spouse’s fault necessitates a departure from the default economic alimony factors. For example, although section 30-3-5(8)(e) urges district courts as “a general rule,” to “look to the standard of living, existing at the time of separation,” it also instructs courts to “consider all relevant facts and equitable principles,” and grants courts “discretion” to “base alimony on the standard of living that existed at the time of trial.” When section 30-3-5(8)(e) is read together with section 30-3-5(8)(b)’s fault provision, it is clear that where a court determines that one spouse’s fault would make it inequitable to maintain both parties at the standard of living enjoyed during the marriage, the court has the discretion to lower the award to an amount sufficient to sustain the at-fault spouse at a reasonable standard of living post-marriage, rather than the standard of living the couple enjoyed during the marriage.

¶ 57 Similarly, section 30-3-5(8)(f) authorizes courts to depart from default alimony awards where fault contributed to the break-up of the marriage. It instructs courts to “attempt to equalize the parties’ respective standards of living.” But it also notes that courts should do so only “under appropriate circumstances.” So once again, when this provision is read together with section 30-3-5(8)(b)’s fault provision, it is clear that courts need not attempt to equalize the parties’ respective standards of living where one spouse’s fault would make equalization inappropriate.

¶ 58 Therefore, under the plain language of section 30-3-5(8), courts have discretion to depart from the default economic rules where one party’s fault makes it appropriate to do so. Because the district court determined that Ms. Gardner’s conduct qualified as fault under the statute, the court was authorized to depart from the default alimony rules by reducing Ms. Gardner’s alimony award by some amount.

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

https://www.quora.com/What-happens-after-an-affair-when-you-have-kids/answer/Eric-Johnson-311?prompt_topic_bio=1

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When did you realize that fighting for your marriage was useless?

When did you realize that fighting for your marriage was useless?

Many people ask me questions about “my” divorce. I am not divorced, I never have been, and (God willing), I will never have cause to be and never will be. Truth be told, like many on this thread, I cannot imagine how bad it would have to get before I realized my marriage was not worth preserving any longer. Just as the heart surgeon need not have suffered a heart attack to do his/her job, neither must a divorce lawyer have gone through a divorce to his/her job.

I’m grateful for your question because it’s a subject you would expect me to have thought long and hard about, but I haven’t (because I don’t like the subject any more than you do). But I will remedy that, starting now. It will be a difficult subject to face, contemplate, research, and form an opinion on, but still a worthwhile question to address.

https://www.quora.com/When-did-you-realize-that-fighting-for-your-marriage-was-useless/answer/Eric-Johnson-311

No-fault and fault-based divorces: what is the difference?

What are the major differences between fault and no-fault divorces and which one should become more universally standard?

It used to be that one could not get a divorce without establishing “fault” as grounds for divorce. “Fault” had a particular meaning in the context of divorce.

Generally, fault-based laws grant a divorce if one person is found guilty or “at fault,” and the other spouse is found “innocent.” Consent of the innocent party is required before a divorce is allowed. Finding a party guilty of one of the available and vague statutory grounds for divorce, such as adultery, abandonment, or a protracted separation period, often is difficult and expensive. Social scientists criticized the fault-based system as contributing to the protracted acrimony between former partners who continued to be in contact through parenting their children. Officers of the court suspected that individuals who wished to divorce under fault-based laws often did so through perjury and the falsification. of evidence to get around strict statutory hurdles.

(http://content.csbs.utah.edu/~fan/fcs5400-6400/studentpresentation2009/04DivorceReadingVinsky.pdf citiations omitted)

No-fault divorce was conceived as a way to make divorce less acrimonious and restrictive, rendering the legal environment neutral and noncoercive. No-fault divorce laws do not require a finding of the innocence or guilt of either party. Claimants can file for divorce generally on the basis of the “irretrievable breakdown” of the marriage or the “incompatibility” of the parties without proving one spouse is at fault. Both individuals are potentially responsible for the care of their children, physically and monetarily, and spousal support and property can be awarded on the basis of the financial resources of each party, rather than on the basis of their guilt or innocence.

(http://content.csbs.utah.edu/~fan/fcs5400-6400/studentpresentation2009/04DivorceReadingVinsky.pdf citiations omitted)

Although I’m sure everyone would agree that no-fault divorce was motivated by good intentions, many also agree that no-fault divorce may have made divorce a little too easy, causing the end of marriages that should not have broken up, with the divorce doing the spouses and children more harm than good.

Stephanie Coontz’s research indicates that successful partnerships presently work better and are more effective than marriages of the past. “They’re more fair, more loving, more intimate and more protective of children,” Coontz says. “So that’s one piece of good news.” That good news, though, applies only to about half of married couples; the U.S. divorce rate hovers at about 45 percent. That’s down from the 1970s and ’80s, but some of that decline can be attributed to fewer trips to the altar.

“Marriage is not always the better option,” Coontz states, “but we can save more healthy marriages than we do. It’s a huge challenge, but we can rise to it.”

(The Origins of Modern Divorce, Coontz, Stephanie Fam Process. 2007 Mar;46(1):7-16).

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

https://www.quora.com/What-are-the-major-differences-between-fault-and-no-fault-divorces-and-which-one-should-become-more-universally-standard/answer/Eric-Johnson-311

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Who gets the house, if one of us had an affair?

After 1.5 years trying to reconcile after my wife’s 5 year affair, we are ending our 20-year marriage. Despite two teenage kids and her being a stay-at-home mom, she had the affair, so I think she should be the one to go. She disagrees. Who’s right?

Answer if there’s fault on both sides:

If she had an affair, but you committed your “fair share” of marital fault too (such as beating your wife or being otherwise extremely cruel during the marriage, if you had an affair of your own, or you’re a drunk or drug addict, etc.) then (although this is not a pure legal principle) you and she could be said to be “even”; there’s plenty of mutual fault to go around. She had an affair for 5 years, you’ve been a drunk for X years; you get the idea. Two wrongs don’t make a right, but it would be hypocritical for one spouse to claim aggrieved status when there’s fault on both sides. But read on for the analysis of who has to move out—that’s at the end of this post.

Answer if you’re the innocent, faultless party:

First, if she was willing to cheat on you behind your back, she probably sees no downside to cheating in court. So unless your wife admits in court to the affair, there’s a good chance she’ll deny the affair. Why not? What does she have to lose (keep reading to find out whether the courts care about spouses who lie about things like an affair)? Then it becomes your burden to prove, not her burden to disprove. So unless you have the 8 x 10 glossies, the hotel guest register, the security camera footage, the pornographic e-mail/text messages, and the like, the affair may never be established as a fact in your divorce proceedings.

Second, even if you are faultless, your wife (and her attorney) will, once the divorce action is filed, likely concoct a fake story or stories ascribing fault to you anyway, even if there’s no proof (“he was never home and all he did when he was home is sleep or watch TV!” or “he raped me for 15 years and I was too embarrassed and scared to do anything about it.”) You’d be surprised how effective such a move can be. She’ll want to counteract the adverse effects of her affair by casting you in an unflattering light, and in today’s culture people believe a woman’s tales of marital woe far more readily than a man’s. And even if she were to get caught in her lies, the courts rarely do anything to penalize them. Why I don’t know; all that does is further erode our faith in the legal system. But I digress.

Third, even if your wife concedes she’s at fault and that you are innocent of any marital fault, the question of who stays in the house usually does not turn on the question of fault. It can, but it usually doesn’t. And what is the most crucial determining factor?

Bottom line:

The question of who should be the one to move out is a question over which reasonable minds can differ, but (and I know you’re not going to like this) it’s primarily a question of “who’s better equipped/able to move out? You said she’s a stay at home mom. And she’s been that way for at least 15 years or so, I’d bet. That likely means that you are a traditional husband/father primary breadwinner type who worked or works outside the home and makes most or all of the family’s money. You don’t spend as much time in the home as your wife does. You likely aren’t the one responsible for the housecleaning, laundry, cooking, child care, etc. Who’s better able to get an apartment and move out?: the unemployed stay at home mother, or you? And there’s your answer.

No good deed goes unpunished.

But remember this: if the house was acquired by you and your wife as joint owners during the marriage and has equity in it (i.e., the value of the house exceeds the amount of the mortgage encumbering it), then it is a marital asset (if not, then this paragraph won’t apply). The house is half yours, half hers. It’s probably your and your wife’s biggest asset. And after divorce, you and she won’t be living together. You’ll need money to pay for a new residence, and the equity in the house is the most obvious, easiest source. Thus “who keeps the house?” idea is, frankly, a silly question unless you and your wife have other assets that equal or exceed the value of the house.

Moreover, if the house is encumbered by a mortgage, it’ll be hard, perhaps impossible, for you to qualify for a loan for a new house for you to live in post-divorce. And what about what happens if your wife “keeps the house,” but then doesn’t pay the mortgage that has your name on it too? Your credit’s ruined. The house could be lost to foreclosure. That’s not fair to you (and it wouldn’t be fair to your wife, if the shoe were on the other foot).

Neither of you should “get the house” unless A) there are other marital assets that could be awarded to one of you to offset the value of the house or perhaps B) one of you can refinance the indebtedness encumbering the house into his/her name only and then add additional money to the newly refinanced loan to “buy out” the other spouse’s half-share of the equity in the house.

If there are no other marital assets that could be awarded to one of you to offset the value of the house, and because you cannot cut the house in half and give each of you a slice, then the fair thing to do is sell the house and award each of you half of the sales proceeds. You may end up living in a bachelor pad during the pendency of the divorce action to give your wife (and kids) time to make prepare for the sale of the house, but if you and your wife cannot agree upon who gets to keep the house, you may want to ask the court to order the house sold, the equity divided between you and your wife.

Here I must mention that if your children are little some courts believe that children shouldn’t be displaced from their house, their neighborhood, friends, etc. due to their mom and dad divorcing. Hey, it really would be good if somehow Mom and Dad could divide the marital assets and dispose of any loan liability issues without the house having to be sold and the parents and kids having to move, but the idea that moving is irreparably or inexcusably traumatic to a child is nonsense (just ask an Army brat or the child of any parent whose job requires frequent moves). The idea that children must remain in one home throughout childhood is not a legal mandate, not even close. If your judge tries to feed you the “I am troubled by what selling the house might do to the children,” fire back with points like: what proof does anyone have that moving is any worse than staying?; how do we know a move wouldn’t be better than staying?; the fact that a move might possibly be good or bad for the children is proof of nothing; even if we knew the move would be hard on the kids, that does not justify risking/damaging the other parent’s credit and denying him/her access to his/her home equity for years.

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

https://www.quora.com/After-1-5-years-trying-to-reconcile-after-my-wifes-5-year-affair-we-are-ending-our-20-year-marriage-Despite-two-teenage-kids-and-her-being-a-stay-at-home-mom-I-think-she-had-the-affair-she-should-be-the-one-to-go/answer/Eric-Johnson-311

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I had a child from an affair but my husband is raising the baby and is on the birth certificate, can the other man get custody of my child?

I had a child from an affair but my husband is raising the baby and is on the birth certificate, can the other man get custody of my child?

I practice law in Utah, so my answer is based upon Utah law.

To answer your question: Is it possible for the biological father to get custody (as opposed to visitation) of the child? Yes. Is it likely? In my opinion, no, unless it can be proven that you are unfit to have custody of the child.

Here’s a good link: Child Custody and Parent Time

and here are some statutory references:

78B-15-602. Standing to maintain [paternity] proceeding.

Subject to Part 3, Voluntary Declaration of Paternity Act, and Sections 78B-15-607 and 78B-15-609, a proceeding to adjudicate parentage may be maintained by:

(1) the child;

(2) the mother of the child;

(3) a man whose paternity of the child is to be adjudicated;

(4) the support-enforcement agency or other governmental agency authorized by other law;

(5) an authorized adoption agency or licensed child-placing agency;

(6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, incapacitated, or a minor; or

(7) an intended parent under Part 8, Gestational Agreement.

78B-15-607. Limitation — Child having presumed father.

(1) Paternity of a child conceived or born during a marriage with a presumed father, as described in Subsection 78B-15-204(1)(a), (b), or (c), may be raised by the presumed father, the mother, or a support enforcement agency at any time before filing an action for divorce or in the pleadings at the time of the divorce of the parents.

(a) If the issue is raised prior to the adjudication, genetic testing may be ordered by the tribunal in accordance with Section 78B-15-608. Failure of the mother of the child to appear for testing may result in an order allowing a motherless calculation of paternity. Failure of the mother to make the child available may not result in a determination that the presumed father is not the father, but shall allow for appropriate proceedings to compel the cooperation of the mother. If the question of paternity has been raised in the pleadings in a divorce and the tribunal addresses the issue and enters an order, the parties are estopped from raising the issue again, and the order of the tribunal may not be challenged on the basis of material mistake of fact.

(b) If the presumed father seeks to rebut the presumption of paternity, then denial of a motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence.

(c) If the mother seeks to rebut the presumption of paternity, the mother has the burden to show by a preponderance of the evidence that it would be in the best interests of the child to disestablish the parent-child relationship.

(d) If a support enforcement agency seeks to rebut the presumption of parentage and the presumptive parent opposes the rebuttal, the agency’s request shall be denied. Otherwise, the denial of the agency’s motion seeking an order for genetic testing or a decision to disregard genetic test results shall be based on a preponderance of the evidence, taking into account the best interests of the child.

(2) For the presumption outside of marriage described in Subsection 78B-15-204(1)(d), the presumption may be rebutted at any time if the tribunal determines that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception.

(3) The presumption may be rebutted by:

(a) genetic test results that exclude the presumed father;

(b) genetic test results that rebuttably identify another man as the father in accordance with Section 78B-15-505;

(c) evidence that the presumed father and the mother of the child neither cohabited nor engaged in sexual intercourse with each other during the probable time of conception; or

(d) an adjudication under this part.

(4) There is no presumption to rebut if the presumed father was properly served and there has been a final adjudication of the issue.

78B-15-611. Proceeding before birth.

A proceeding to determine parentage may be commenced before the birth of the child, but may not be concluded until after the birth of the child. The following actions may be taken before the birth of the child:

(1) service of process;

(2) discovery; and

(3) except as prohibited by Section 78B-15-502, collection of specimens for genetic testing.

78B-15–616. Temporary order.

(1) In a proceeding under this part, the tribunal shall issue a temporary order for support of a child if the order is appropriate and the individual ordered to pay support is:

(a) a presumed father of the child;

(b) petitioning to have his paternity adjudicated;

(c) identified as the father through genetic testing under Section 78B-15-505;

(d) an alleged father who has failed to submit to genetic testing;

(e) shown by clear and convincing evidence to be the father of the child; or

(f) the mother of the child.

(2) A temporary tribunal order may include provisions for custody and visitation as provided by other laws of this state.

78B-15-617. Rules for adjudication of paternity.

The tribunal shall apply the following rules to adjudicate the paternity of a child:

(1) The paternity of a child having a presumed, declarant, or adjudicated father may be disproved only by admissible results of genetic testing excluding that man as the father of the child or identifying another man as the father of the child.

(2) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man identified as the father of a child under Section 78B-15-505 must be adjudicated the father of the child, unless an exception is granted under Section 78B-15-608.

(3) If the tribunal finds that genetic testing under Section 78B-15-505 neither identifies nor excludes a man as the father of a child, the tribunal may not dismiss the proceeding. In that event, the tribunal shall order further testing.

(4) Unless the results of genetic testing are admitted to rebut other results of genetic testing, a man properly excluded as the father of a child by genetic testing must be adjudicated not to be the father of the child.

https://www.quora.com/I-had-a-child-from-an-affair-but-my-husband-is-raising-the-baby-and-is-on-the-birth-certificate-can-the-other-man-get-custody-of-my-child/answer/Eric-Johnson-311

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

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