rprise that it usually takes much less time and effort to prepare for a proffer hearing than preparing for a full evidentiary hearing. In a proffer hearing the client won’t do much, if anything, during the actual hearing, with the exception of perhaps providing the occasional clarifying answer if the court asks them. No witnesses are called to testify in hearing conducted by proffer; instead, their testimony is provided by affidavit or verified declaration.
If you are unsure if your upcoming hearing will be a proffer or evidentiary hearing, ask your attorney. It could be catastrophic for your case if you show up at court believing the hearing is a proffer hearing when it’s a full-blown evidentiary hearing.
Sara Pfrommer, Ronald D. Wilkinson, and Nathan S. Shill, Attorneys for Appellant
Jacob A. Watterson and James C. Jenkins, Attorneys for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
LUTHY, Judge:
¶1 This case raises issues regarding the claim preclusion
branch of the doctrine of res judicata in the context of divorce proceedings. Two years after Stashia and Isaac Nelson divorced, their circumstances had changed enough that Isaac[1] asked the district court to modify their divorce decree to give him shared physical custody of their children and to lower his monthly child support obligation. Isaac was behind in his support payments, and in response to his petition, Stashia asserted that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”
¶2 The parties engaged in mediation and were able to agree on a new custody and parent-time arrangement and on a reduced monthly child support obligation for Isaac going forward. They presented their agreement to the court, and it entered a modified divorce decree that incorporated the terms of the agreement.
¶3 Stashia then initiated a separate proceeding to collect the child support that Isaac had failed to pay under the original decree. Isaac argued that all child-related financial matters, including his child support arrears, had been resolved in the proceeding to modify the divorce decree and that Stashia was therefore barred under the claim preclusion branch of the doctrine of res judicata from collecting the unpaid support. The court disagreed and ordered Isaac to pay past-due support. In response, Isaac filed a certificate of readiness for trial on an issue that he had not raised previously, namely, whether the reduction in his monthly support obligation should be backdated to when he filed his petition to modify the divorce decree. The district court ruled that there were no issues to certify for trial and entered judgment against Isaac for unpaid support in the amount of $2,835.40 plus interest. Isaac appeals.
¶4 We see no error in the conclusion that claim preclusion does not bar Stashia’s claim for unpaid child support. We also see no error in the district court’s ruling that there were no issues to certify for trial. We therefore affirm.
BACKGROUND
The Parties’ Marriage and Divorce
¶5 Isaac and Stashia married in 2007 and together had two children. Stashia later initiated divorce proceedings, during which the parties reached an agreement that was incorporated into a divorce decree in March 2016.
¶6 The divorce decree provided for the parties’ joint legal custody of the children, while giving Stashia sole physical custody and Isaac parent-time. The decree also ordered Isaac to pay $768 per month in child support, based on Stashia having sole physical custody of the children and on her lack of employment at the time.
Isaac’s Petition to Modify the Divorce Decree
¶7 In June 2018, Isaac petitioned to modify the divorce decree, based on “substantial and material changes in the circumstances of the parties.” In support of modifying the decree’s custody order, Isaac alleged that he had a more “stable residence” and “flexible work schedule” than when the parties divorced; that he was also more able to “provide additional familial support” because he had recently remarried; and that Stashia, on the other hand, had violated several of the custody and parent-time provisions in the divorce decree. Based on these allegations, Isaac requested “increased parent time” and “joint physical custody.”
¶8 In support of modifying the decree’s child support order, Isaac alleged that Stashia had become employed full time and that her increased income, along with the parties’ joint physical custody of the children, if the court awarded it, merited a reduction in his child support obligation.
¶9 In her answer to Isaac’s petition, Stashia alleged, among other things, that Isaac was “not current in his child support obligation.” She then asserted, as one of several affirmative defenses, that Isaac’s “claims [were] barred, in whole or in part, because of [his] unclean hands in not being current in his child support obligation.”
¶10 During discovery, the parties exchanged financial declarations outlining their incomes, assets, and expenses, but neither party produced documents or information regarding Isaac’s past child support payments or alleged arrears.
¶11 In October 2018, the parties participated in mediation and stipulated to a temporary modification of the divorce decree. The stipulation, the terms of which were incorporated into an order, contained temporary parent-time provisions and an agreement to participate in a custody evaluation. It did not mention or modify child support, and it concluded by saying: “All issues not specifically addressed herein that have been raised or could have been raised by the parties are, hereby, reserved.”
¶12 After the agreed-upon custody evaluation was completed, the parties again participated in mediation, in May 2019. Later the same day, the district court commissioner held a settlement conference at which the parties orally presented stipulated terms to be incorporated into an amended divorce decree.
¶13 As to custody, the parties’ attorneys told the commissioner that the parties had agreed to “a joint legal, joint physical custody arrangement,” and the attorneys then explained the details of that arrangement. As to child support, they said that the parties had agreed that “[c]hild support would be 600 per month effective June 1st, 2019.” The attorneys then said that the parties had agreed that “all prior orders that are not specifically modified here . . . would remain in full force and effect.”
¶14 Toward the end of the settlement conference, the commissioner asked Isaac and Stashia if they were “willing to accept those terms as a final resolution of the issues that [were] currently pending in [the] matter.” Each responded, “Yes.”
¶15 In October 2019, the court issued an amended divorce decree incorporating the terms the parties had orally agreed to during the settlement conference. The amended decree sets forth the parties’ custody arrangement; contains provisions regarding parent-time; restates the parties’ parenting plan; provides that Isaac’s “child support obligation shall be modified to $600.00 per month effective June 1, 2019”; contains provisions regarding claiming the minor children for tax purposes; and states the parties’ responsibilities regarding medical and childcare expenses. It then provides: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.”
Stashia’s Motion for an Order to Show Cause
¶16 In February 2020, Stashia filed a motion for an order to show cause,[2] alleging that Isaac owed child support arrears that had accrued between September 2016 and February 2020.
¶17 Isaac opposed Stashia’s request for unpaid child support. He noted that in response to his petition to modify the original divorce decree, Stashia “had raised the issue that [Isaac] had child support arrearage.” He pointed to the parties’ statements during the May 2019 settlement conference that they were willing to accept the terms outlined at that conference “as a final resolution of the issues that [were] currently pending in [the] matter.” (Emphasis omitted.) And he pointed to the language of the amended decree that says that the amended decree is “a consolidated order on custody, parent-time, and child related financial matters.” The district court commissioner “reviewed the pleadings on file and . . . considered the evidence and arguments presented” and disagreed with Isaac, finding that “[Stashia] did not waive [Isaac’s] child support arrears at the [May 2019] mediation between the parties or by stipulating to the Amended Decree of Divorce.”
¶18 Isaac objected to the commissioner’s recommendation. He argued that, based on “the principles of the ‘claim preclusion’ prong of the doctrine of res judicata,” the modification proceedings and amended divorce decree had “a preclusive effect” on a claim for child support arrears that accrued before entry of the amended decree. The district court overruled Isaac’s objection and entered judgment against Isaac for child support arrears “in an amount to be determined . . . based on the accountings submitted by the Parties.” After the parties submitted their accountings, the court found that Isaac’s child support arrears totaled $2,835.40.[3]
Isaac’s Certificate of Readiness for Trial
¶19 Isaac then filed, in March 2021, a certificate of readiness for trial, in which he asserted: “This case is ready for trial on the reserved issue of [whether] the June 1, 2019 child support adjustment should be backdated to the date of the filing of the Petition to Modify (June 2018).” Isaac had not previously asked the court to backdate the modified child support order to June 2018.
¶20 The district court ruled that “[t]here [were] no issues to certify for trial” and entered judgment against Isaac in the amount of $2,835.40 plus interest. Isaac now appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 Isaac asks us to reverse the district court’s judgment against him for unpaid child support. He contends that Stashia’s claim for unpaid child support is barred by the claim preclusion branch of res judicata.[4] Ultimately, “[w]hether a claim is barred by res judicata is a question of law that we review for correctness.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 9, 284 P.3d 622.
¶22 Part of our claim preclusion analysis in this case, however, requires a determination of the intended scope of ambiguous language in the stipulated amended divorce decree. Where the language of a written stipulation is ambiguous, “the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence.” Christensen v. Christensen, 2018 UT App 53, ¶ 6, 420 P.3d 106 (footnote omitted). When a court looks outside the four corners of a written stipulation to determine its intended scope, that determination presents a question of fact, “which we review for clear error.” Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898, cert. denied, 398 P.3d 51 (Utah 2017).
¶23 Isaac also asks us to reverse the district court’s ruling, in response to his filing of a certificate of readiness for trial, that “[t]here [were] no issues to certify for trial.” The legal effect of a certificate of readiness for trial is a question of law, and “[w]e review questions of law for correctness, giving no deference to the ruling of the court below,” see Madsen v. Washington Mutual Bank FSB, 2008 UT 69, ¶ 19, 199 P.3d 898.
ANALYSIS
I. Stashia’s Claim for Unpaid Child Support
Is Not Barred by Res Judicata.
¶24 Isaac contends that the district court erred in allowing Stashia to bring a claim for unpaid child support. As we have noted, the substance of his argument is that Stashia’s claim for unpaid support is barred by the claim preclusion branch of res judicata. See supra note 3. This court has previously observed that, indeed, “[t]he principles of res judicata apply fully in the context of divorce proceedings.” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210 (citing Jacobsen v. Jacobsen, 703 P.2d 303, 305 (Utah 1985)), cert. denied, 4 P.3d 1289 (Utah 2000). But this observation merits explanation.
¶25 Both res judicata and the law of the case doctrine can operate to give an earlier decision on a particular claim or issue preclusive effect when the same claim or issue is raised again. See Utah State Bar v. Rasmussen (In re Discipline of Rasmussen), 2013 UT 14, ¶¶ 17–18, 299 P.3d 1050. A key difference between the two doctrines, however, is that generally “[r]es judicata applies as between multiple cases while the law of the case doctrine applies to successive proceedings within one case.” State v. Waterfield, 2014 UT App 67, ¶ 39 n.12, 322 P.3d 1194, cert. denied, 333 P.3d 365 (Utah 2014).
¶26 This distinction could suggest that in a single divorce case—over which a district court has continuing jurisdiction to enter orders modifying the original decree, see Utah Code § 30-3-5(5)—only the law of the case doctrine would ever apply. To the contrary, however, we have held that res judicata applies as between “[original] divorce actions and subsequent modification proceedings.” Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). Accordingly, in Krambule v. Krambule, 1999 UT App 357, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), we concluded that a petition to modify a divorce decree to require an ex-husband to pay support for a child conceived through artificial insemination without the ex-husband’s knowledge was “barred under the principles of res judicata” since that claim “could and should have been asserted in the original divorce action.” Id. ¶ 16. And in Throckmorton v. Throckmorton, 767 P.2d 121 (Utah Ct. App. 1988), we upheld on res judicata grounds the denial of a petition to modify a divorce decree to give an ex-wife an interest in her ex-husband’s retirement benefits, which had not been included in the original decree. See id. at 123.
¶27 In other words, we treat an original divorce proceeding and each subsequent proceeding to modify the divorce decree as separate “cases” for res judicata purposes. At the same time, we treat a divorce proceeding leading to a decree or an amended decree and any subsequent proceeding to enforce that decree or amended decree as successive proceedings within the same case. Thus, in this second context, we apply the law of the case doctrine. See Robinson v. Robinson, 2016 UT App 32, ¶¶ 26–29, 368 P.3d 147 (holding, in a proceeding to enforce a stipulated divorce decree, that law of the case barred a husband from relitigating a factual issue decided previously), cert. denied, 379 P.3d 1185 (Utah 2016).[5]
¶28 This appeal is somewhat unusual in that the “first case” for
purposes of res judicata is the modification proceeding and the “second case” is the order to show cause proceeding to enforce the child support order from the original decree. But because the order to show cause proceeding is based on the original decree, it is a separate “case” from the modification proceeding that resulted in the amended decree. We therefore apply the principles of res judicata as we analyze the potential preclusive effect of the amended decree in the order to show cause proceeding.[6]
¶29 “The doctrine of res judicata embraces two distinct branches: claim preclusion and issue preclusion.” Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 19, 16 P.3d 1214. “[C]laim preclusion corresponds to causes of action[;] issue preclusion corresponds to the facts and issues underlying causes of action.” Oman v. Davis School Dist., 2008 UT 70, ¶ 31, 194 P.3d 956.
¶30 “Claim preclusion . . . is premised on the principle that a controversy should be adjudicated only once.” Pioneer Home Owners Ass’n v. TaxHawk Inc., 2019 UT App 213, ¶ 41, 457 P.3d 393 (cleaned up), cert. denied, 466 P.3d 1073 (Utah 2020). It “bars a party from prosecuting in a subsequent action a claim that has been fully litigated previously.” Hansen v. Bank of N.Y. Mellon, 2013 UT App 132, ¶ 5, 303 P.3d 1025 (cleaned up). “Whether a claim is precluded from relitigation depends on a three-part test.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194.
First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.
Id. (cleaned up).
¶31 Here, it is undisputed that Stashia and Isaac were the parties to both the proceeding on Isaac’s petition to modify the divorce decree—the “first case”—and the proceeding on Stashia’s subsequent claim for unpaid child support under the original decree—the “second case.” It is also undisputed that Isaac’s petition to modify the divorce decree resulted in a final judgment on the merits, in the form of the amended divorce decree. Thus, we focus our analysis on the second requirement of the claim preclusion test: whether Stashia presented or was required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the decree.
A. Stashia did not present a claim for unpaid child support in the modification proceedings.
¶32 The second requirement of the claim preclusion test is satisfied if the claim at issue was presented in a prior action. See Mack, 2009 UT 47, ¶ 29. Isaac argues that Stashia’s answer to his petition to modify the divorce decree presented a claim for unpaid child support. Specifically, he points to Stashia’s allegation that Isaac was “not current in his child support obligation” and to her assertion, as an affirmative defense, that Isaac’s “unclean hands in not being current in his child support obligation” should bar modification of his support obligation.[7]
¶33 However, while Stashia alleged that Isaac was in arrears in
his child support payments, neither that allegation nor the affirmative defense based on that allegation presented a “claim.” “An original claim, counterclaim, cross-claim or third-party claim must contain a short and plain: (1) statement of the claim showing that the party is entitled to relief; and (2) demand for judgment for specified relief.” Utah R. Civ. P. 8(a). Stashia’s answer to Isaac’s petition to modify the divorce decree did not allege how much Isaac owed in unpaid child support or make a demand for relief. We cannot, therefore, say that Stashia’s affirmative defense presented a claim for res judicata purposes. See Airfreight Express Ltd. v. Evergreen Air Center, Inc., 158 P.3d 232, 237 (Ariz. Ct. App. 2007) (holding that “affirmative defenses are not claims” for purposes of “[t]he doctrine of claim preclusion”); cf. Norman A. Koglin Assocs. v. Valenz Oro, Inc., 680 N.E.2d 283, 288 (Ill. 1997) (“A counterclaim differs from an . . . affirmative defense. A counterclaim is used when seeking affirmative relief, while an . . . affirmative defense seeks to defeat a plaintiff’s claim.”).
¶34 This is consistent with our analysis in Berkshires, LLC v. Sykes, 2005 UT App 536, 127 P.3d 1243. In that case, the plaintiffs were poised to purchase and develop multiple parcels of land when the defendants recorded a document purporting to grant an easement that would significantly hinder the anticipated development. Id. ¶ 4. The plaintiffs sued “for slander of title and interference with economic relations, claiming that [the defendants] had intentionally fabricated the [e]asement [d]ocument.” Id. ¶ 6. Late in the litigation, the defendants moved for partial summary judgment, asserting that as a matter of law under the undisputed evidence “Hope Lane, a road running [across the parcels at issue], was a public road.” Id. ¶ 9. The trial court denied the motion on the ground that the defendants had not presented a claim for Hope Lane to be declared a public road because their “original answer merely stated that ‘[a]s a separate and affirmative defense, [the] [d]efendants . . . allege that Hope Lane is a public road,’ without making any further affirmative claim for relief.” Id. (first alteration and omission in original).
¶35 On appeal, the defendants argued that the trial court improperly refused to treat their Hope Lane affirmative defense as a counterclaim. See id. ¶¶ 16–17. We said that among the factors a court could consider when deciding whether to treat an affirmative defense as a counterclaim was “whether the defense as argued or articulated in the pleadings sufficiently states a claim for relief and a demand for judgment as required by rule 8(a) of the Utah Rules of Civil Procedure.” Id. ¶ 18. In concluding that the trial court had not abused its discretion by refusing to treat the Hope Lane affirmative defense as a counterclaim, we explained:
At the heart of the matter here is whether Plaintiffs should have recognized that Defendants’ statement “Hope Lane is a public road” was in reality a counterclaim, though labeled an affirmative defense. Here, the statement on its face is not readily identifiable as a counterclaim; it requests no relief and does not demand judgment. . . . Defendants did not properly plead a counterclaim . . . .
Id. ¶ 19. In sum, although it was in a different context, we have previously concluded that an affirmative defense that requests no relief and does not demand judgment does not present a claim. Our reaching the same conclusion here in the res judicata context “is not much of a jurisprudential leap.” Atkinson v. Stateline Hotel Casino & Resort, 2001 UT App 63, ¶ 19 n.6, 21 P.3d 667.
B. The district court’s finding that the amended divorce decree did not preclude Stashia’s claim for unpaid child support was not clearly erroneous.
¶36 Even if a party does not present a claim in her pleadings or otherwise during litigation, she might still agree to settle that unpled claim with the intent to foreclose its future litigation. If such an agreement becomes the basis of a stipulated decree, the second requirement of claim preclusion is met, and claim preclusion may apply to the settled but unpled claim. See Keith v. Aldridge, 900 F.2d 736, 741 (4th Cir. 1990) (holding, in the context of a “consent judgment,” that “[i]f the parties intended to foreclose through agreement litigation of a claim, assertion of that claim in a later suit, whether or not formally presented in the earlier action, is precluded”); 18A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 4443 (3d ed. April 2022 update) (“[Following a consent judgment,] [i]f it is clear that the parties agreed to settle claims that were not reflected in the original pleadings, preclusion may extend to claims that were not even formally presented.”).[8]
¶37 Isaac relies on this principle. He contends that the amended
divorce decree, which was the product of a settlement agreement and stipulation, “expressly and unambiguously resolved” any claim for child support arrears that predated the amended decree. In support, he points to the provision of the amended decree that states: “This order shall be a consolidated order on custody, parent-time, and child related financial matters.” (Emphasis added.) Isaac interprets the phrase “child related financial matters” to mean that the amended decree was an order resolving all child related financial matters, including his child support arrears. But this is not the only plausible reading of this provision.
¶38 The amended decree addresses several child-related financial matters explicitly: the modified child support award, income tax deductions related to the children, health insurance and medical expenses for the children, and childcare expenses. It never mentions child support arrears. Thus, the phrase “child related financial matters” can plausibly be read as encompassing only the child-related financial matters explicitly addressed in the amended decree. Because this provision of the amended decree supports two plausible readings, it is ambiguous. See Moon v. Moon, 1999 UT App 12, ¶ 19, 973 P.2d 431 (“Language in a written document is ambiguous if the words may be understood to support two or more plausible meanings.” (cleaned up)), cert. denied, 982 P.2d 89 (Utah 1999).
¶39 “Ordinarily, we interpret a divorce decree as we would any other written instrument, construing it in accordance with its plain meaning and according no deference to the district court’s interpretation.” Christensen v. Christensen, 2018 UT App 53, ¶ 6,
420 P.3d 106. “But where, as here, the agreement is ambiguous, the trial court ordinarily considers extrinsic evidence in an effort to resolve the ambiguit[y] and will make findings of fact to resolve any disputed evidence . . . .” Id. (footnote omitted).
¶40 The district court here considered extrinsic evidence to determine whether Stashia’s claim for unpaid child support was encompassed within the amended decree, and it made a factual finding that the claim for unpaid child support was not encompassed within the decree. Among the evidence considered were the oral representations the parties made during their May 2019 settlement conference and a declaration provided by Isaac, both of which Isaac directed the court to when he opposed Stashia’s motion for an order to show cause. The district court considered this evidence and found that Stashia did not waive her claim for unpaid child support.
¶41 When, as here, a court looks outside the four corners of a stipulated judgment to determine its intended scope, that determination is a determination of fact, which we review for clear error. See Noel v. James, 2022 UT App 33, ¶ 11, 507 P.3d 832 (“The scope of a stipulation presents a question of fact, which we review for clear error.” (cleaned up)); Fuller v. Bohne, 2017 UT App 28, ¶ 9, 392 P.3d 898 (same), cert. denied, 398 P.3d 51 (Utah 2017). And “[f]indings of fact are clearly erroneous only if no reasonable factfinder could review the evidence presented and arrive at the disputed finding.” Blackhawk Townhouses Owners Ass’n Inc. v. J.S., 2018 UT App 56, ¶ 23, 420 P.3d 128.
¶42 We see no clear error in the district court’s finding that the parties’ amended decree was not intended to be preclusive of Stashia’s claim for child support arrears. Isaac’s child support arrears were not mentioned at all during the May 2019 settlement conference. A reasonable factfinder might therefore believe it a stretch to assume that when Stashia and Isaac told the commissioner they were “willing to accept [the] terms [that had been outlined in the settlement conference] as a final resolution of the issues that [were] currently pending in [the] matter,” they would have thought that those issues included Isaac’s alleged child support arrears.
¶43 Moreover, after the parties said that the modified child support obligation would become effective June 1, 2019, they told the commissioner that “all prior orders that are not specifically modified [as outlined in the settlement conference] . . . would remain in full force and effect.” A reasonable view of this evidence is that when the parties accepted the terms of the stipulation “as a final resolution of the issues that [were] currently pending in this matter,” these were the terms that they intended to accept: that the child support order prior to June 1, 2019, as well as any outstanding obligations under it, “would remain in full force and effect.”
C. Stashia was not required to present her claim for unpaid child support in the modification proceeding.
¶44 Even if a claim was not presented or settled in an initial action, the second requirement of the claim preclusion test can be met by showing that the subsequently raised claim “could and should have been raised in the first action.” Mack v. Utah State Dep’t of Com., 2009 UT 47, ¶ 29, 221 P.3d 194 (cleaned up). A subsequent claim could and should have been brought in an earlier action “if [both claims] arise from the same operative facts, or in other words from the same transaction.” Id. ¶ 30. To determine if two claims arise from the same transaction, a court may consider “whether the facts [of each] are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations.” Gillmor v. Family Link, LLC, 2012 UT 38, ¶ 14, 284 P.3d 622 (cleaned up). But “no single factor is determinative.” Id. (cleaned up). “Therefore, every consideration need not be addressed or considered in every case.” Id.
¶45 Here, Isaac’s claims for modification of the divorce decree were not related in origin to Stashia’s later claim for unpaid child support. Isaac’s claims to modify the divorce decree originated from alleged changes to his work and home life since the entry of the original decree (including his recent remarriage), alleged violations by Stashia of the divorce decree’s custody and parent-time provisions, and Stashia’s recent full-time employment. In contrast, Stashia’s claim for unpaid child support originated from Isaac’s alleged failure to abide by the divorce decree’s child support order. These differing origins suggest that the parties’ respective claims do not arise from the same transaction. See In re Marriage of Potts, 542 N.E.2d 179, 181–82 (Ill. App. Ct. 1989) (observing that “[t]here [was] no significant evidentiary overlap” between a father’s claim for unpaid child support and the mother’s claim for modification of the support obligation and, thus, holding that res judicata did not bar the father’s separate action for unpaid support); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (concluding that a stipulation to amend a divorce decree to reduce the father’s child support obligation was “a totally different and distinct action” from the mother’s later “motion to compel payment of child support arrearages” and, thus, that res judicata did not bar the mother’s later action for arrearages).
¶46 Additionally, neither Isaac nor Stashia conducted discovery related to Isaac’s alleged child support arrears during the modification proceeding, which suggests that it was not their expectation that Isaac’s claims for modification of the original decree and Stashia’s claim for unpaid child support under the original decree would be treated as a single trial unit.
¶47 Moreover, Utah Code section 78B-12-210(9)(a) provides for the filing of a petition to modify a child support order based on a substantial change of circumstances, while our rules require a motion—previously a motion “for an order to show cause,” see Utah R. Civ. P. 7(q) (2020), and now “a motion to enforce order,” see Utah R. Civ. P. 7B—to recover unpaid child support. By providing different procedures for modifying a child support order and enforcing a child support order, our code and rules also implicitly recognize that these two types of actions generally do not arise from the same transaction. Cf. In re P.D.D., 256 S.W.3d 834, 842, 844 (Tex. App. 2008) (reasoning in part that because the Texas Family Code “does not require their joinder,” actions for “delinquent child support” and actions for “modification of . . . future child support obligations” are “separate and definable questions” and the one is not barred by the other under a “transactional approach” to res judicata).
¶48 The differing origins of Isaac’s and Stashia’s respective claims, the apparent expectations of the parties, and the procedural scheme set forth in our code and rules demonstrate that Isaac’s claim for modification of the original child support order and Stashia’s claim for enforcement of the original order did not arise from the same transaction. Thus, Stashia was not required to present her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree.
¶49 Because Stashia neither presented nor settled her claim for unpaid child support during the proceeding on Isaac’s petition to modify the divorce decree, and because she was not required to present her claim for unpaid child support during that proceeding, the doctrine of claim preclusion does not apply to bar Stashia’s claim.[9]
II. The District Court Did Not Err by Concluding that There
Were No Issues to Certify for Trial.
¶50 Isaac also argues that “[t]he district court erred when it
refused to allow [him] to counter Stashia’s Order to Show Cause with his request to retroactively apply the child support modification.” His request to retroactively apply the child support modification took the form of a certificate of readiness for trial filed nearly a year and a half after the modification proceeding to which it related had concluded. Because the modification proceeding had concluded, and because Isaac filed no rule 59 or 60(b) motion to alter or relieve him from the resulting judgment—i.e., the amended divorce decree, with its June 1, 2019 effective date for the modified support order—Isaac’s certificate of readiness for trial landed in a legal vacuum and had no legal effect.[10] With no pending proceeding to which retroactive application of the modified support order applied, the district court was correct to conclude that “[t]here [were] no issues to certify for trial.”
CONCLUSION
¶51 Stashia did not present an affirmative claim for child support arrears during the modification proceeding. The district court did not clearly err in finding that Stashia’s claim for those arrears was not encompassed within the modified divorce decree. And Stashia’s claim for those arrears did not arise out of the same transaction as the claims Isaac made in his petition to modify the decree. Accordingly, Stashia’s claim for unpaid child support is not barred by res judicata. Additionally, the district court’s ruling in response to Isaac’s certificate of readiness for trial—that there were no issues to certify for trial—was not in error.
[1] As is our practice, because the parties share the same last name, we use their first names, with no disrespect intended by the apparent informality.
[2] The “motion to enforce order” procedure outlined in rule 7B of the Utah Rules of Civil Procedure has now “replace[d] and supersede[d] the prior order to show cause procedure” in the context of “domestic relations actions, including divorce.” Utah R. Civ. P. 7B(a), (i), (j). A similar “motion to enforce order” procedure outlined in rule 7A now applies in the context of other civil proceedings. See id. R. 7A. In recommending rule 7B, the Utah Supreme Court’s Advisory Committee on the Rules of Civil Procedure left untouched rule 101(k), which addresses motion practice before district court commissioners and still recites requirements for “[a]n application to the court for an order to show cause.” Id. R. 101(k). The committee may wish to revise rule 101(k) to conform rule 101(k)’s provisions to those of rule 7B.
[3] Our resolution of this appeal makes determining the portion of this amount that accrued before entry of the amended divorce decree unnecessary.
[4] Isaac does not always frame his argument in terms of “claim preclusion” or “res judicata.” In one section of his principal brief, he asserts that the claim for unpaid child support was “resolved” by the amended divorce decree. In another, he argues that “the issues to which the parties have stipulated [have] become ‘settled’ and ‘not reserved for future consideration.’” And at one point he does explicitly invoke “the ‘claim preclusion’ prong of the doctrine of res judicata.” Regardless of their phrasing, each of these arguments is, in substance, an argument for application of the doctrine of res judicata. See infra ¶¶ 26-28; Mel Trimble Real Estate v. Monte Vista Ranch, Inc., 758 P.2d 451, 453 (Utah Ct. App.) (explaining that res judicata “bars the relitigation . . . of a claim for relief previously resolved” (emphasis added)), cert. denied, 769 P.2d 819 (Utah 1988); Res judicata, Black’s Law Dictionary (abridged 6th ed. 1991) (defining res judicata as “a thing or matter settled by judgment” (emphasis added)).
Because Isaac never uses the terms “issue preclusion” or “collateral estoppel” and never cites a case applying that branch of res judicata, and because he did not do so in the district court, we address only the claim preclusion branch of res judicata. See generally 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“Issues that are not raised at trial are usually deemed waived.”); State v. Sloan, 2003 UT App 170, ¶ 13, 72 P.3d 138 (declining to address an inadequately briefed issue).
[5] Application of res judicata in the divorce context might be seen as “distinguish[able]” from its application in other contexts in another way as well. See Smith v. Smith, 793 P.2d 407, 410 (Utah Ct. App. 1990). That is because in the divorce context the preclusive effect of res judicata can be avoided based on “the equitable doctrine that allows courts to reopen [prior] determinations if the moving party can demonstrate a substantial change of circumstances.” Id. In fact, some prior determinations in divorce cases may be reopened on a showing of a material change of circumstances that is less than substantial. See, e.g., Miller v. Miller, 2020 UT App 171, ¶ 18, 480 P.3d 341 (observing that “when modifying parent-time (as opposed to custody), the petitioner is required to make only some showing of a change in circumstances, which does not rise to the same level as the substantial and material showing required when a district court alters custody” (cleaned up)). Though this might be seen as a distinguishing feature of res judicata in the divorce setting, it is consistent with our statement that “[t]he principles of res judicata apply fully in the context of divorce proceedings,” Krambule v. Krambule, 1999 UT App 357, ¶ 13, 994 P.2d 210, cert. denied, 4 P.3d 1289 (Utah 2000), because a decision based on a changed set of material facts is not a decision on the same question as the one presented previously.
[6] We are not alone in this approach. See, e.g., In re Marriage of Potts, 542 N.E.2d 179, 180–82 (Ill. App. Ct. 1989) (applying res judicata principles to hold that, under the facts of the case, an amended divorce decree that modified a child support obligation did not bar a claim for child support arrears that accrued under the prior decree); Zickefoose v. Muntean, 399 N.W.2d 178, 180–81 (Minn. Ct. App. 1987) (same).
[7] “The doctrine of unclean hands expresses the principle that a party who comes into equity for relief must show that his conduct has been fair, equitable, and honest as to the particular controversy in issue.” Goggin v. Goggin, 2013 UT 16, ¶ 60, 299 P.3d 1079 (cleaned up).
[8] “In Utah, . . . the rules of claim preclusion are ‘virtually identical’ to the federal rules . . . .” Haik v. Salt Lake City Corp., 2017 UT 14, ¶ 9, 393 P.3d 285 (citation omitted).
[9] The district court expressed its ruling against Isaac’s claim preclusion argument by finding that Stashia “did not waive” her claim for unpaid child support. Our ruling is that Stashia neither waived nor forfeited her right to assert that claim. “Though principles of waiver and forfeiture are often used interchangeably, the two concepts are technically distinct.” Reller v. Argenziano, 2015 UT App 241, ¶ 30, 360 P.3d 768 (cleaned up). “Forfeiture is the failure to make the timely assertion of a right, whereas waiver is the intentional relinquishment or abandonment of a known right.” Id. (cleaned up). Stashia did not waive her known right to bring a claim for unpaid support since, as we have concluded, she did not intentionally relinquish it through settlement or otherwise. Nor did she forfeit that right by the issue of failing to timely assert it since, as we have concluded, she was not required to present her claim during the modification proceeding. See id. ¶ 31 (holding that failure to timely amend a complaint to assert a claim for retroactive child support amounted to a forfeiture). We leave for another day the question of whether or how a claim for unpaid child support may be settled without running afoul of the statutory limitation on the waiver of child support claims. See generally Utah Code § 78B-12-109(1) (“Waiver and estoppel [of child support] shall apply only to the custodial parent when there is no order already established by a tribunal if the custodial parent freely and voluntarily waives support specifically and in writing.”); Cahoon v. Evans, 2011 UT App 148, ¶ 3, 257 P.3d 454 (holding that Utah Code section 78B-12-109 “rules out waiver and estoppel in all instances where there is a child support order already in place”).
[10] Isaac makes no attempt to address this procedural reality. Instead, he uses the certificate of readiness for trial as a vehicle to argue that he stipulated to a June 1, 2019 effective date for the modified child support order only “[i]n exchange” for Stashia giving up the right to pursue her claim for child support arrears. But the district court found that the parties did not intend such an exchange, and we have affirmed that finding. See supra ¶¶ 36–43.
Julie J. Nelson and Alexandra Mareschal, Attorneys for Appellant
Todd R. Sheeran, Attorney for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES DAVID N. MORTENSEN and DIANA HAGEN concurred.
TENNEY, Judge:
¶1By statute, a district court must ordinarily find that a material and substantial change in circumstances occurred before modifying the custody provisions in a divorce decree. In this appeal, we’re asked to answer two main questions about this statute.
¶2First, if a decree is silent about whether one of the parents has legal custody of a child, is the district court later required to find that there was a material and substantial change in circumstances before determining whether that parent has legal custody in the first instance? We conclude that a material and substantial change in circumstances is not required in such a scenario.
¶3Second, in situations where the custody modification statute is applicable, can a custodial parent’s attempt to sever a years-long relationship between the noncustodial parent and a child legally qualify as a material and substantial change? We conclude that it can.
¶4 Based on these two conclusions, we affirm the modifications at issue.
BACKGROUND [10] The Divorce Decree
¶5Nicole and Bryant Widdison were married in June 2004. They had two children during their marriage, Daughter and Son. Bryant is Daughter’s biological father, but Nicole conceived Son with another man during a brief separation from Bryant. Nicole and Bryant reconciled before Son’s birth, however, and Bryant was in the delivery room when Nicole gave birth to Son. Bryant is listed on Son’s birth certificate, and Son bears Bryant’s surname.
¶6Nicole and Bryant divorced in July 2015. Daughter was ten years old at the time, and Son was about three and a half. The divorce decree (the Decree) was largely based on a stipulation between Nicole and Bryant.
¶7In the portions relevant to this appeal, the Decree provided:
Physical Custody: Nicole shall have physical custody of both said minor children. Bryant will remain on Son’s birth certificate unless or until he is challenged by some other legitimate party who prevails in a court of law.
. . . .
Legal Custody: The parties shall have “joint legal custody” of Daughter.
. . . .
Parent-Time/Visitation: Bryant shall be entitled to reasonable parent-time with Daughter. Reasonable parent-time shall be defined as the parties may agree. However, if the parties are not able to agree, Bryant shall be entitled to the following parent-time:
. . . .
2) . . . Bryant may have two (2) overnights each week to coincide with the days that he is off work with the parties’ oldest child, Daughter[,] during the school year. . . . During the Summer months Bryant may have three overnights every other week and two overnights on the alternating weeks. . . . As for the youngest child, Son, parent-time will be at Nicole’s sole discretion . . . .
3) Bryant shall also be entitled to holidays and summer parent-time as articulated in U.C.A. § 30-335 . . . .
. . . .
Child Support: . . . Based on [the parties’] incomes, and a sole custody worksheet (even though the parties have a different parent-time arrangement and with the benefit and consent of counsel after being informed and involved), Bryant shall pay Nicole child support in the amount of $450.00 each month for the one female child (Daughter). . . . Any reference to a financial obligation[] or child support in this document shall be interpreted as applying only to the older child (Daughter).
(Emphases added.)
¶8As noted, the Decree gave Nicole “sole discretion” over whether Bryant could spend parent-time with Son. During the first three years after the divorce, Nicole “regularly and consistently allowed Son to exercise time with Bryant.” Her usual practice was to allow Son to accompany Daughter whenever Daughter visited Bryant. Since the Decree entitled Bryant to spend a little over 30 percent of the time with Daughter, this meant that Bryant spent a little over 30 percent of the time with Son during those years too.
The Modification Petitions
¶9In November 2016, the State filed a petition to modify the Decree to require Bryant to pay child support for Son. The State’s petition noted that Son was born during Nicole and Bryant’s marriage, and it asserted that Bryant was Son’s presumptive legal father under Utah Code § 78B-15-204(1)(a) (LexisNexis 2018)11, which states that a “man is presumed to be the father of a child if,” among others, “he and the mother of the child are married to each other and the child is born during the marriage.” The State noted that “[n]o child support has been ordered for this child.” It accordingly asked the court to “find[] Bryant to be the legal father of Son” and order him to pay child support for Son.
¶10In his answer to the State’s petition, Bryant agreed that he “is the presumptive father” of Son and expressed his “desire[]” to “be treated as the natural father of Son” “for all intents and purposes.” Bryant also asked the court for an order granting him joint legal and physical custody of Son, as well as a “clarification of his rights and duties, namely parent-time with Son.”12
¶11 In September 2018, Bryant filed his own petition to modify the Decree. There, Bryant asserted that he “has been the only father figure that Son has known,” and he argued that he “should be presumed and considered the legal father of Son.” Bryant also argued that “[t]here has been a significant, substantial and material change in circumstances that has occurred since the parties’ Decree of Divorce concerning custody, parent-time, and child support, such that modification of the Decree of Divorce is in the best interests of the minor children.”13
Motion for Temporary Relief
¶12 About two months after Bryant filed his petition to modify, Nicole suddenly cut off Bryant’s parent-time with Son. After she did, Bryant filed a motion for temporary relief, asking the court to award him “his historical/status quo parent time with both the minor children” until his petition to modify was resolved.
¶13 The matter went before a court commissioner, and a hearing was held in which Bryant and Nicole and their respective attorneys were present. During the hearing, the commissioner heard how often Son accompanied Daughter during her visits with Bryant. At the close of the hearing, the commissioner ordered Nicole to “immediately resume Bryant’s historical/status quo parent time with both minor children” and to “allow Son to follow the parent-time schedule of Daughter, consistent with the historical parent-time exercised by Bryant.”
¶14 Nicole objected to the commissioner’s recommendation, but the district court overruled that objection. The court instead agreed to temporarily “modify the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child.” The court continued that it “could also be argued that such visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” Nicole was thus ordered to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending.
The Relocation Proceedings
¶15 A short time later, Nicole requested an expedited phone conference with the court, explaining that the company she worked for was requiring her to relocate to California. After a hearing, the commissioner recommended that “[t]he children . . . remain in Utah until the Court changes the Order regarding custody and parent time.”
¶16 During the hearing, the commissioner further noted that “[c]onspicuously absent from Nicole’s argument [was] anything—from this Court’s perspective—showing she’s considering the child’s perspective.” In particular, the commissioner explained that
Son has shared time with the older sibling going to Bryant’s home. Nicole has regularly and consistently allowed this child to exercise time with Bryant. In [November] of 2018, Nicole disagreed. And I agree, she does have the discretion to make decisions with regard to Son. From the child’s perspective, however, one child goes with Dad and the other doesn’t, because Bryant stepped on Nicole’s toes. She says, I’m establishing boundaries; you don’t get to see this child. That’s fine if this child is a car or a refrigerator. Son [is] a person who has Bryant’s surname, who has been exercising time—from what I can see—[a] full seven years.
The commissioner further explained that “there’s been enough of a change, enough consistency for this younger child, that he has followed the older child, has the same surname [as Bryant], [Bryant’s] name’s on the birth certificate that has not been changed, to follow [Daughter’s parent-time] schedule.”
¶17 Nicole did not object to the commissioner’s recommendation, and she hasn’t relocated in the meantime.
The District Court’s Ruling on Bryant’s Petition to Modify
¶18 A bench trial was held in November 2019 to settle the issues raised in Bryant’s petition to modify and Nicole’s request to relocate. The district court later entered an order titled “Amended Findings of Fact and Conclusions of Law on Petitioner’s Relocation Request,” which addressed both the relocation request and the broader issues regarding Bryant’s legal and physical custody.
¶19 In its order, the court first concluded that the petition to modify was “appropriate in that there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” The court did not, however, more specifically identify what those “changes in circumstances” were.
¶20 Second, the court concluded that Nicole had “failed to rebut the presumption of paternity that exists in this case.” In the court’s view, Nicole had not shown by a “preponderance of the evidence that it would be in the best interest of Son to disestablish the parent-child relationship that has been created and substantiated by both of the parties over many years.” The court then “enter[ed] an adjudication that Bryant is the father of Son” and modified the Decree to “impose as to Son parental obligations” on Bryant, “including the obligation to pay child support for Son.”
¶21Third, the court “award[ed] Bryant joint legal custody of Son on the same terms as the Decree provide[d] for Daughter.”
¶22 And finally, the court ruled that Nicole was “free to relocate.” If she did, the court awarded Bryant parent-time with both children under the terms set forth in Utah Code section 303-37(6) (Supp. 2021). If Nicole stayed in Utah, however, the court awarded Bryant “parent time with Son on the same terms as was occurring with Daughter.”
¶23 That same day, the court issued a separate “Order Modifying Decree of Divorce.” This order reiterated that Bryant is “adjudicated to be the legal father of both Daughter and Son,” that Bryant now bore “all parental obligations in accordance with Utah law,” including the “obligation to pay child support” for both children, and that Bryant had “joint legal custody of both children on the same terms set forth in the [original] Decree with respect to Daughter.” The court further repeated the parent-time schedule that was set forth in its ruling on the relocation request—i.e., it awarded Bryant parent-time with Son on the same terms that he had with Daughter. It then declared that, “[e]xcept as modified by this Order, the parties’ Decree remains in full force and effect.”
ISSUES AND STANDARDS OF REVIEW
¶24 Nicole challenges the district court’s decisions to give Bryant (1) legal custody of Son and (2) parent-time with Son. We review a district court’s decision to modify a divorce decree, as well as a court’s parent-time determination and custody award, for abuse of discretion. See Stephens v. Stephens, 2018 UT App 196, ¶¶ 20–21, 437 P.3d 445; MacDonald v. MacDonald, 2017 UT App 136, ¶ 7, 402 P.3d 178.
¶25 As discussed below, we regard one portion of the ruling in question as a determination of custody in the first instance. “A district court’s award of custody is reviewed for abuse of discretion.” Taylor v. Elison, 2011 UT App 272, ¶ 8, 263 P.3d 448. As also discussed below, another portion of Nicole’s argument turns on whether the circumstances at issue can legally qualify as a change in circumstances. We review that decision for correctness. See Toone v. Toone, 952 P.2d 112, 114 (Utah Ct. App. 1998) (“[I]n this case, we are presented with a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.”).
ANALYSIS
¶26“While there are several tools that can generally be used to modify final judgments, one tool that is specific to family law cases is the petition to modify.” McFarland v. McFarland, 2021 UT App 58, ¶ 25, 493 P.3d 1146 (quotation simplified); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). “Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees.” McFarland, 2021 UT App 58, ¶ 25.
¶27 “On the petition of one or both of the parents,” the governing statute allows a court to “modify or terminate an order that established joint legal custody or joint physical custody” if “the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified” and the modification “would be an improvement for and in the best interest of the child.” Utah Code Ann. § 30-3-10.4(1) (LexisNexis 2019). This is a “bifurcated procedure,” Hogge v. Hogge, 649 P.2d 51, 53 (Utah 1982), and Utah courts have consistently referred to it as a “two-step” process, Doyle v. Doyle, 2011 UT 42, ¶ 24, 258 P.3d 553. See also Becker v. Becker, 694 P.2d 608, 610–11 (Utah 1984). Notably, it’s also a sequential process, in that a court cannot “reopen[] the custody question until it has first made a threshold finding of substantially changed circumstances.” Doyle, 2011 UT 42, ¶ 25 (quotation simplified).14
¶28 As explained above, the district court made a number of changes to the Decree, and Nicole now challenges two of them on appeal: the decision to award Bryant legal custody of Son and the decision to grant Bryant parent-time with Son. We address each in turn.
I. Legal Custody
¶29 Nicole first challenges the district court’s decision to award Bryant joint legal custody of Son. Nicole claims that, “[u]nder the decree, [she] had sole . . . legal custody of Son,” and she then argues that under the two-step process described above, the district court erred by granting legal custody to Bryant without first providing any “analysis regarding a change in circumstances.” In her view, “[t]he district court disregarded the custody . . . arrangements from the decree and awarded joint [legal] custody of Son as if the decree had never been entered.”
¶30Nicole’s argument, however, is based on a false premise— namely, that the Decree had awarded her sole legal custody of Son. But it hadn’t. The Decree had a separately enumerated “Legal Custody” subsection. That subsection stated that “[t]he parties shall have ‘joint legal custody’ of Daughter.” (Emphasis added.) This provision said nothing about Son, and no other provision in the Decree purported to establish whether Nicole had legal custody of Son (let alone sole legal custody), or instead whether Bryant did (or didn’t) have any form of legal custody of Son himself. Instead, on this, the Decree was silent.15
¶31But the court was legally required to make a legal custody determination for Son. The Utah Code states that courts “shall enter . . . an order of custody”—both legal and physical—when a “married couple’s marriage is declared void or dissolved.” Utah Code Ann. § 30-3-10(1) (2019) (emphasis added). The term “shall,” of course, has long been regarded as a command. See, e.g., Lay v. Lay, 2018 UT App 137, ¶ 12, 427 P.3d 1221.16
¶32 The Decree’s silence impacts how we view Nicole’s arguments on appeal. Again, the Decree is silent about whether Bryant (or any other putative father) had legal custody of Son, and it likewise said nothing about whether Nicole (or any other mother) had legal custody of Son. So the question here is whether the court could correct this oversight without having to first determine that there had been a sufficient change in circumstances to warrant modification.
¶33 We conclude that a change in circumstances was not required for the court to correct the Decree in this manner. As noted, the change-in-circumstances requirement is set forth in Utah Code section 30-3-10.4. This requirement “serves multiple interests.” Doyle, 2011 UT 42, ¶ 25. “First, because a custody decree is predicated on a particular set of facts, that decree is res judicata,” so “the changed-circumstances requirement prevents an unnecessary drain on judicial resources by repetitive litigation of the same issue when the result would not be altered.” Miller v. Miller, 2020 UT App 171, ¶ 17, 480 P.3d 341 (quotation simplified). “Second, the changed-circumstances requirement protects the custodial parent from harassment by repeated litigation.” Id. (quotation simplified). And third, “the requirement protects the child from ‘ping-pong’ custody awards,” id. (quotation simplified), thus emphasizing “the importance of a stable and secure homelife for children who are shifted from one parent figure to another” and ensuring that custody issues are not frivolously or infinitely “reopen[ed],” Hogge, 649 P.2d at 53–54 (quotation simplified).
¶34 None of these concerns are implicated here. To the contrary, since the question of whether Bryant had legal custody of Son was unaddressed in the Decree, there was nothing for the court to “reopen” or change. Id. at 53. Thus, properly understood, Nicole isn’t really challenging a decision to modify a prior determination that Bryant should (or shouldn’t) have legal custody of Son. Rather, what Nicole is actually challenging is a decision that, in effect, decided legal custody in the first instance. Because of this, we conclude that no change in circumstances could reasonably be required. After all, if it were true that a court couldn’t correct an omission of a required determination without pointing to a change in circumstances, divorce decrees like this one would be left indeterminate about key issues such as who had legal custody of a child. And the effect of such omissions would be felt by both the children and the parents, all of whom would be left without the guidance and certainty that custody determinations are intended and required to provide. We decline to create, let alone endorse, such an approach.
¶35Our determination thus leaves the remaining question of whether the court exceeded its discretion when it awarded joint legal custody of Son to Bryant in the first instance. We conclude that it didn’t.
¶36 “Under both the United States Constitution and the constitution of [Utah], a parent possesses a fundamental liberty interest in the care, custody, and management of the parent’s child.” Utah Code Ann. § 80-4-104(1) (Supp. 2021). Because of this, legal custody is linked to the fact of parentage. Our supreme court, for example, has held that a father has “legal custody of [his] [c]hild by virtue of his paternity,” In re adoption of B.B., 2017 UT 59, ¶ 81, 417 P.3d 1, and the same would of course be true for mothers by virtue of their maternity. Indeed, by statute, Utah law “presume[s] that a parent automatically enjoys legal custody” of his or her child, and this is so because of “the fundamental liberty interest of a parent concerning the care, custody, and management of the parent’s child.” Id. (quotation simplified). The legislature has also established “a rebuttable presumption that joint legal custody” “is in the best interest of the child.” Utah Code Ann. § 30-3-10(3) (2019).
¶37Here, Son was born during Nicole and Bryant’s marriage, so Bryant was legally “presumed to be” Son’s father. Id. § 78B15-204(1)(a) (2018). And while this presumption of paternity can be overcome, the district court concluded that it was not. Instead, in the same ruling at issue on appeal, the court declared Bryant to be Son’s legal father, and Nicole has not challenged that paternity decision on appeal.
¶38 As also noted, however, Bryant’s now-established paternity of Son presumptively gave him joint legal custody of Son too, based in part on Bryant’s own constitutional interests in the care and raising of Son, who is his child. See In re adoption of B.B., 2017 UT 59, ¶ 81. In her arguments to us, the only reason that Nicole gives for overcoming this presumption is the fact that the initial Decree was silent about whether Bryant had legal custody of Son. But as we’ve explained, that omission was a legal error. And when the district court was alerted to that error, it appropriately fixed it. Once the court did, the result was that Bryant—who was present at Son’s birth, was listed on Son’s birth certificate, and has acted as Son’s father since birth—was now Son’s legal father, which meant that he was presumptively entitled to legal custody of Son too.
¶39 In short, under these circumstances, no change in circumstances was required, and we see no abuse of discretion in the court awarding legal custody of Son to Bryant in the first instance.
II. Physical Custody
¶40 Nicole next challenges the district court’s decision to modify the Decree’s provisions regarding parent-time with Son. As set forth below, we first clarify (A) the nature of the modification, (B) the district court’s reasons for it, and (C) the standard of review applicable to Nicole’s particular challenge. We then hold that (D) the change in circumstance at issue can legally support a modification of custody.
A. The Nature of the Modification
¶41 The Decree was silent about legal custody of Son, but it wasn’t silent about physical custody. Instead, it affirmatively gave Nicole “physical custody of both said minor children”—i.e., both Daughter and Son. And while the Decree then set forth a delineated parent-time schedule for Daughter, it left Bryant’s parent-time with Son to “Nicole’s sole discretion.”
¶42In the ruling at issue, the district court modified this. The court removed Nicole’s “sole discretion” over parent-time for Son and set forth two alternative parent-time schedules. If Nicole remained in Utah, Bryant would have parent-time with Son “on the same terms as was occurring with Daughter.” If she moved to California, however, Bryant would have one weekend per month with both children as well as additional time with them during the summer. See Utah Code Ann. § 30-3-37(6) (2019).
¶43Although this ruling was couched in terms of parent-time, the parties have both suggested in their briefing that this amounted to a modification of physical custody of Son. We agree.
¶44 Physical custody and parent-time “are conceptually distinct.” Ross, 2019 UT App 104, ¶ 14 n.3. “Physical custody has long been understood to involve much more than actual possession and care of a child,” instead implicating the right and “legal responsibility to provide supervision and control” of a child. Hansen v. Hansen, 2012 UT 9, ¶ 15, 270 P.3d 531. By contrast, the term “parent-time” more narrowly refers to the amount of time that a parent is entitled to spend with the child. See generally Utah Code Ann. §§ 30-3-34 to -36 (2019 & Supp. 2021) (setting forth minimum, optional, and equal parent-time schedules as well as parent-time considerations for special circumstances).
¶45 That said, the terms are intertwined because, “[b]y statutory definition, there are two kinds of physical custody— sole physical custody and joint physical custody,” and “the dividing line” between the two is largely “based on the number of overnight visits enjoyed by each parent.” McFarland, 2021 UT App 58, ¶ 36. When a child “stays with each” of his or her “parent[s] overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support,” each of the parents has joint physical custody of the child. Utah Code Ann. § 30-3-10.1(3)(a) (2019). But when a child stays with one parent overnight for less than 30% of the year, the parent who has over 70% of the overnights is considered to have sole physical custody of the child. See id.; Utah Code Ann. § 78B-12-102(15) (Supp. 2021); McFarland, 2021 UT App 58, ¶ 36.
¶46 Here, the Decree did not specifically determine whether Nicole had “sole” or “joint” physical custody of either of the children. But at least with regard to Son, the Decree effectively awarded Nicole sole physical custody because it gave her “sole discretion” whether Son would spend any parent-time with Bryant at all. And, critically for this appeal, the Decree also awarded Bryant what amounted to joint physical custody of Daughter. After all, the dividing line is 30% of the overnights, and 30% of the 365 days in a year is roughly 110. In the proceedings below, the commissioner reviewed the Decree and determined that the parent-time schedule gave Bryant more “than the 110 overnights,” which accordingly meant that Bryant had “joint physical custody” of Daughter. Thus, when the district court later equalized Bryant’s parent-time with Son to match the parent-time he had with Daughter, it in effect modified the Decree to give Bryant joint physical custody of Son too.17
B. The Basis for the District Court’s Change-in-Circumstance
Determination
¶47 As noted, the district court determined that “there have been material changes in circumstances warranting modification of the parties’ Decree in the children’s best interests, which have not previously been adjudicated.” But the court did not specifically delineate what those changes were. Because of this, Nicole initially asks us to reverse the modification based on the court’s failure to provide any “analysis as to why a custody modification was justified” under the required change-in-circumstances test.
¶48 We acknowledge that the district court’s ruling on this could have been more clear. But even so, “a trial court’s failure to make explicit findings supporting its decision does not, alone, warrant reversal so long as the basis for the trial court’s ruling is readily apparent from the record.” In re A.S., 2014 UT App 226, ¶ 7, 336 P.3d 582; cf. State v. Pecht, 2002 UT 41, ¶ 34, 48 P.3d 931 (explaining that “where the record as a whole sufficiently” indicates the basis for the court’s ruling, “an absence of written findings will not invalidate the trial court’s conclusions”).
¶49Here, the court expressly concluded that there had been a change in circumstances, so the court was plainly cognizant of the requirement and believed that it had been met. And from our review of the record, we believe that the basis for the court’s determination is sufficiently apparent. In its ruling regarding the temporary orders, the court temporarily “modif[ied] the stipulation to reflect what the parties themselves were actually doing regarding parent time.” The court surmised that “reducing the visitation the parties themselves were doing” might “be harmful to the child” and that “visitation is helpful and beneficial to the child, especially since both children will be doing visitation together and parents have the right of visitation with their children.” It thus ordered Nicole to give Bryant “the same parent-time with Son, consistent with Bryant’s parent time with Daughter,” while Bryant’s petition to modify was pending. This initial decision demonstrated two key things: (1) the court intended to equalize Bryant’s parent-time with Daughter and Son, and (2) it more specifically intended to prevent Nicole from “reducing” Bryant’s parent-time with Son.
¶50 The court’s ruling on Nicole’s relocation request (which, again, accompanied the modification ruling) was consistent with these goals. There, the court ruled that Bryant should be declared Son’s father—a determination that, again, Nicole has not challenged on appeal. Notably, in doing so, the court expressed its intention to not allow Nicole to “disestablish the parent child relationship” between Bryant and Son “that has been created and substantiated by both of the parties over many years.”
¶51 Together, these orders reflect the court’s intention to formally recognize and now protect Bryant’s relationship with Son. From all this, we believe it is “readily apparent from the record,” In re A.S., 2014 UT App 226, ¶ 7, that the change in circumstances found by the court to support modification included: (i) the changes in Bryant’s relationship with Son (namely, the three years of additional parent-time bonding, as well as Bryant’s new status as Son’s legally recognized father), and (ii) Nicole’s recent attempts to cut off Bryant’s access to Son.
C. Standard of Review
¶52 Nicole next argues that Bryant’s further-developed relationship with Son and her decision to cut off parent-time between the two could not legally qualify as a change in circumstances under the custody modification statute. As noted in the Standard of Review section above, supra ¶ 25, we regard this as a legal question that is reviewed for correctness. In light of our past caselaw, this warrants some explanation.
¶53 This court has previously held that a district court’s “determination regarding whether a substantial change of circumstances has occurred is presumptively valid, and our review is therefore limited to considering whether the [district] court abused its discretion.” Nave-Free v. Free, 2019 UT App 83, ¶ 8, 444 P.3d 3 (quotation simplified); accord Christensen v. Christensen, 2017 UT App 120, ¶ 10, 400 P.3d 1219; Doyle v. Doyle, 2009 UT App 306, ¶ 7, 221 P.3d 888, aff’d, 2011 UT 42, 258 P.3d 553. We reaffirm our adherence to this general rule here.
¶54 On occasion, however, we have held that the abuse-of-discretion standard applies to a district court’s “ultimate determination regarding the presence or absence of a substantial change in circumstances.” Peeples v. Peeples, 2019 UT App 207, ¶ 11, 456 P.3d 1159 (emphasis added); accord Harper v. Harper, 2021 UT App 5, ¶ 11, 480 P.3d 1097. But when we have been presented with an argument that didn’t challenge the court’s “ultimate determination” of whether certain facts constituted a material and substantial change in circumstances, but instead contended that particular facts or developments simply couldn’t be legally considered as part of the court’s analysis, we have treated those questions as questions of law for which we give the district court’s ruling no appellate deference.
¶55 Our decision in Toone v. Toone, 952 P.2d 112 (Utah Ct. App. 1998), is illustrative. There, after a divorce had been finalized, federal laws regarding military pensions changed; and if those new laws were applied to the parties’ divorce, they would have allowed the ex-wife a larger share of her ex-husband’s military pension. See id. at 113–14. The ex-wife accordingly filed a petition to modify, asserting that the change in laws amounted to a change in circumstances that justified modification of the divorce decree. Id. We disagreed. See id. at 114. Notably, while reaffirming the rule that a district court’s “modification determination” is reviewed “for an abuse of discretion,” we regarded the particular question before us as being “a question of law regarding what constitutes a substantial change of circumstances, which is reviewed for correctness.” Id.
¶56 Another case proceeded similarly. In Davis v. Davis, 2011 UT App 311, ¶ 6, 263 P.3d 520, we construed a party’s argument that certain events “could not be used as evidence” in the change-in-circumstances analysis as a legal question that we reviewed for correctness.
¶57This distinction, though perhaps subtle, is important, and it accords with how standards of review operate. The “primary function of a standard of review is to apportion power and, consequently, responsibility between trial and appellate courts for determining an issue.” State v. Levin, 2006 UT 50, ¶ 19, 144 P.3d 1096 (quotation simplified). In this sense, the standard of review determination “allocate[s] discretion between the trial and appellate courts” based on an assessment of “the relative capabilities of each level of the court system.” Id. (quotation simplified).
¶58 Again, the statute in question here requires a court to determine whether there was a material and substantial change in circumstances. See Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). The evaluation of whether a particular change was material or substantial enough calls for a weighing of facts and circumstances. District courts are in a better position than we are to do such weighing, which is why those ultimate determinations receive discretionary deference. But if a party instead makes a threshold argument that a particular kind of fact or development can’t legally be used in the weighing at all, that argument essentially asks us to establish the permissible boundaries of the district court’s discretionary decision-making authority. Such a question is legal in nature, which is why that aspect of the ruling is reviewed for correctness.
¶59 In her opening brief, Nicole argues that the change in circumstances identified by the district court “is not the sort of ‘change’ that justifies modification under Utah law.” (Emphasis added.) In her reply brief, Nicole similarly asserts that the district court “did not find[] changed circumstances that qualify under Utah law.” (Emphasis added.) She accordingly asks us to review the district court’s decision for correctness, rather than an abuse of discretion. So viewed, we don’t understand Nicole to be challenging the court’s weighing of the permissible facts. Rather, we understand Nicole to be making a legal argument about whether the court could even consider the change in relationship between Son and Bryant in the intervening years and Nicole’s subsequent, unilateral decision to cut off their parent-time as a material change in circumstances. Because her argument is legal in nature, we review this aspect of the ruling for correctness.
D. The Change in Circumstances
¶60 Properly understood, the question, then, is whether the change in circumstances identified above can legally qualify as a change in circumstances under Utah law. We conclude that it can.18
¶61 As noted, the statute requires a determination that “a material and substantial change in circumstance has occurred.” Utah Code Ann. § 30-3-10.4(2)(b)(i) (2019). A chief “goal” of this required determination is to give children “some measure of certainty and stability” after their parents or guardians have separated. In re E.H., 2006 UT 36, ¶ 2, 137 P.3d 809. Indeed, the supreme court has suggested that children are “entitled” to “permanence and stability” moving forward. Id. ¶ 16.
¶62 For good reason. The “emotional, intellectual, and moral development of a child depends upon a reasonable degree of stability in the child’s relationships to important people and to its environment.” Elmer v. Elmer, 776 P.2d 599, 602 (Utah 1989). Both the supreme court and this court have recognized that stability is paramount with respect to “custody arrangements.” Hogge, 649 P.2d at 54; see also Kramer v. Kramer, 738 P.2d 624, 626 (Utah 1987) (recognizing that “stable custody arrangements are of critical importance to the child’s proper development”); Taylor v. Elison, 2011 UT App 272, ¶ 22, 263 P.3d 448 (recognizing the “general policy of maintaining custodial stability to the extent it is reasonable and wise to do so while [a child’s] parents seek to resolve their differences” and that “it is generally in the best interests of the child to remain with his or her existing custodial parent”).
¶63 This stability interest is one of the driving forces behind the change-in-circumstances requirement, which “provide[s] stability to children by protecting them from ‘ping-pong’ custody awards.” Chaparro v. Torero, 2018 UT App 181, ¶ 39, 436 P.3d 339 (quotation simplified). “Absent such a requirement, a decree of divorce would be subject to ad infinitum appellate review and readjustment.” Foulger v. Foulger, 626 P.2d 412, 414 (Utah 1981). Thus, the understood “rationale” for this requirement is “that custody placements, once made, should be as stable as possible unless the factual basis for them has completely changed.” Kramer, 738 P.2d at 627 (quotation simplified).
¶64 But this leads to the problem that the district court was confronted with here. Again, the parent-child relationship between Bryant and Son had existed since birth, had solidified in the several-year period after the divorce, and had just now been officially recognized as a matter of law. Despite this, Nicole had recently invoked her authority under the Decree to cut off Bryant’s access to Son entirely, thus amounting to something akin to complete custodial interference.
¶65 The legislature, however, has recognized that “each divorcing, separating, or adjudicated parent is entitled to . . . frequent, meaningful, and continuing access with the parent’s child consistent with the child’s best interest,” Utah Code Ann. § 30-3-32(2)(b)(ii) (Supp. 2021) (emphases added), and that, absent evidence of abuse or harm to the child, “it is in the best interests of the child to have both parents actively involved in parenting the child,” id. § 30-3-32(2)(b)(iii) (emphasis added). True, such relationships can be altered or even severed by operation of law. But here, the Decree was the product of a stipulation, not a court determination, and no court has ever determined that it was not in the best interests of Son to have a relationship with Bryant.
¶66 Given that Bryant has now been adjudicated to be Son’s father, we believe that the court could legally conclude that this change, coupled with Nicole’s concomitant attempt to undermine their ability to have any relationship at all, warranted a modification of the Decree to protect the father-son relationship moving forward.
¶67 Nicole, however, resists this conclusion. She argues that her decision “to allow (or not allow) parent-time” is not “the type of change in circumstances that justifies modification under Utah law.” We disagree.
¶68As a starting point, we note that Nicole’s argument has no support in the controlling statutory text. Section 30-3-10.4(2)(b)(i) requires a court to find that “a material and substantial change of circumstance has occurred.” There is nothing in the text of this statute that creates the limit suggested by Nicole—i.e., the statute doesn’t prevent a district court from concluding that a custodial parent’s efforts to cut off a years-developed relationship between a child and the noncustodial parent qualifies as such a change.
¶69Nicole nevertheless points to two cases that, in her view, support her proposed limitation. But we don’t find either case to require a different result here.
¶70 First, Nicole relies on a passage from Doyle in which the supreme court “adopted a general rule” under which “the asserted change” in circumstances must be related to the “parenting ability or the functioning of the presently existing custodial relationship,” rather than the “parenting of the noncustodial parent.” 2011 UT 42, ¶ 41 (quotation simplified).
¶71 But while Doyle referred to this as a “general rule,” it never said it was an “exclusive” one. Indeed, in the very next sentence, Doyle recognized “an exception to the general rule” that was based on a prior Utah case. Id. Doyle itself thus shows that this “general rule” is subject to judicially recognized exceptions.
¶72Moreover, section 30-3-10.4(1)(a) itself provides that, in a petition to modify, the petition or affidavit must “allege[] that admissible evidence will show that the circumstances of the child or one or both parents . . . have materially and substantially changed since the entry of the order to be modified.” (Emphasis added.) By allowing a modification to be based on a change in the circumstances of “the child or one or both parents,” the legislature directly contemplated that a change in circumstances of any of the parties—the child or either parent—can provide the basis for a modification. So while Doyle’s statement provides some guidance, we do not understand it to be an inviolable limitation of the sort proposed by Nicole.
¶73 Second, Nicole claims that in Crouse v. Crouse, 817 P.2d 836 (Utah Ct. App. 1991), we adopted a rule under which a noncustodial parent’s strengthened relationship with a child cannot qualify as a change in circumstances for purposes of a subsequent modification request. We disagree with Nicole’s interpretation of Crouse.
¶74 In Crouse, the mother had been given primary physical custody of the children after the divorce, but she had then allowed the children to “spen[d] almost equal time” with their father in the ensuing years. Id. at 837. Based in part on this allowance of extra time, the father later requested a modification of the decree to give him “primary physical custody” over the children. Id. The district court denied his modification request, and we affirmed that decision. Id. at 837, 840.
¶75Nicole points to a passage from our affirmance in which we recognized that the “fact that Mrs. Crouse has been generous in sharing physical custody with Mr. Crouse is not a ground to change physical custody; if anything, it supports leaving primary physical custody with Mrs. Crouse, as it shows that she has lived up to the responsibilities of a custodial parent.” Id. at 839.
¶76In contrast to Nicole, however, we don’t read this passage as having determined that, as a matter of law, a district court cannot consider such facts in its analysis. It’s significant that we were affirming the district court’s denial of a petition to modify in Crouse. It’s also significant that the same section of the opinion began with a reminder that a “trial court’s decision concerning modification of a divorce decree will not be disturbed absent an abuse of discretion,” id. at 838, and that we then referred to the court’s “discretion” three more times in that section, id. at 838– 39. Thus, properly understood, Crouse was not establishing rules about the facts that a court could legally consider. Rather, Crouse was giving deference to the district court’s determination that the facts before it were not enough to satisfy the requisite standard.
¶77 Moreover, we also note that the district court’s use of its discretion in Crouse was consistent with the understood purpose behind the change-in-circumstances requirement. The mother there had originally been awarded primary physical custody, and after she let the children “spen[d] almost equal time” with their father over a period of a few years, the father asked the court to grant him “primary physical custody” as a result. Id. at 837. In this sense, the father’s request, if granted, would have created instability in the children’s lives by changing their primary caregiver.
¶78 The opposite is true here. Again, Bryant had acted as Son’s father since birth. After Nicole then allowed Son to continue developing this relationship with Bryant over the course of several post-divorce years, Nicole changed her mind and decided to cut off their relationship, thus essentially leaving Son fatherless. Put simply, the effect of our decision here is consistent with Crouse, not inconsistent with it. There, we affirmed a district court decision that preserved stability in the children’s lives. And here, we’re likewise affirming a district court decision that preserved stability in the affected child’s life.
¶79 In sum, the statute does not impose the limitation proposed by Nicole, and we think that doing so ourselves would be inconsistent with Utah caselaw, the importance of parent-child relationships, the protections given to those relationships by constitution and statute alike, and the modification statute’s recognized goal of promoting stability in children’s lives. We therefore conclude that a district court can legally determine that a unilateral attempt by a custodial parent to sever a child’s years-developed relationship with his or her noncustodial parent can constitute a substantial and material change in circumstances, thereby allowing the court to proceed to the best interests step of the modification analysis. We accordingly affirm the district court’s conclusion that a change in circumstances occurred here.
¶80 Having done so, we add two cautionary notes to this decision. First, Nicole suggests that a ruling like this one will essentially penalize a custodial parent for being generous with the noncustodial parent’s ability to exercise parent-time. We’re sensitive to this concern. But again, a district court can’t proceed to the best-interests step of the analysis based on just any change in circumstances. Rather, the court must first determine that the change is “material and substantial.” Utah Code Ann. § 30-3-10.4(2)(b)(i). Whether a particular increase or decrease in parent-time is enough to qualify will be circumstance-dependent, and we have no need to more specifically cabin the district courts’ discretionary authority here. But in light of Nicole’s concern, we do note that the change in question in this case was from something akin to 30% of the time to 0%. We’re simply holding that a court can regard such a dramatic alteration of the existing parent-child relationship to be a material and substantial change in circumstances.
¶81 Second, we again note that, even when a district court concludes that a change in circumstances has occurred, this does not mean that the court must modify the decree. Again, this is a two-step analysis, and under the second step, a court can only modify a decree if it finds that the modification “would be an improvement for and in the best interest of the child.” Id. § 30-3-10.4(2)(b)(ii). Thus, even in a circumstance like this one, a district court could still determine that modification is not appropriate if it concludes that the proposed modification would not be in the best interests of the child.
¶82 In this sense, our decision today does not restrict the district courts’ options. Rather, it keeps them open. We simply hold that, in a case like this one, a district court can determine that a material and substantial change in circumstances has occurred—not that it must, and not that it must then make any particular ruling regarding the best interests of the child.19
CONCLUSION
¶83 For the foregoing reasons, we affirm the district court’s decision to give Bryant joint legal and physical custody of [decision ends here inexplicably].
Utah Family Law, LC | divorceutah.com | 801-466-9277
What will happen if the court ruled in favor of a mother to have the custody of her child but the child refuses to go with her and she prefers to stay with the father?
This situation (and this question) comes up a lot. I will answer the question as it applies in my experience to the jurisdiction where I practice divorce and family law (Utah).
SHORT ANSWER: The general rule of thumb is that if the child is a teenager and has the guts and the will to defy the court’s custody orders, then that child is going to live with the parent with whom he or she wants to live because the court is essentially powerless to force the child to comply with the child custody order, i.e., the court finds it more trouble than it is worth to enforce a child custody order against a defiant teen.
LONGER ANSWER:
Technically, the child has no choice in the matter, once the court has issued its child custody ruling and resulting orders. In other words, just because somebody doesn’t want to follow court orders doesn’t mean that he or she is free to disregard them or to act as a law unto himself or herself. This proves to be true of court orders pertaining to adults. Child custody orders, and the children affected by them, however, are in reality a different matter.
In the law we have two terms that help to describe the situation: de jure and de facto. De jure means that which is which applies as a matter of law. For example, as a matter of law, your child is ordered to spend most of his/her time in the custody of mother, with the father spending time the child on alternating weekends and a few odd holidays. De facto means that which is or that which applies as a matter of fact (in reality, and not as the court may artificially require). So while as a matter of law your child is required to live with mother, if in reality (as a matter of “fact”—this is where the “facto” in “de facto” comes from) the child refuses to live with mother and stays at the father’s house, that is the de facto child custody situation.
When A) the de jure and de facto situations conflict in a child custody situation, and B) the child is old enough, strong enough, and willful enough to continue to the court’s custody orders, the court often (not always, but usually) feels that they are practicably powerless to force children to live with a parent with whom they do not wish to live.
Normally, when an adult will not comply with the court’s order, One of the tools a court can use to enforce compliance is its contempt powers. Those powers include finding and jailing the noncompliant person. But with children, that power is, for all intents and purposes, nonexistent. Children usually have no money with which to pay a fine, and Utah does not allow courts to jail minors for mere contempt of court.
Some courts try to get creative and impose sanctions on a noncompliant child by essentially ordering them “grounded”, but again, if the child chooses not to comply, there is little the court can do or feels is wise to do to the child. I’ve seen a court try to get a child to comply by ordering her barred from participating in her beloved dance classes and driver education courses (so that she can’t get her driver license unless she lives with the court ordered custodial parent) as long as the child refused to live with the court-ordered custodial parent. In that case, however, the child outlasted the court, i.e., she kept living with the noncustodial parent and stopped attending dance and driver’s ed. classes. Then the court found itself in the awkward position of preventing the child from getting exercise and driving to and from her job and other worthwhile, even necessary activities, so the court relented (both in the best interest of the child and to save face). This is a lesson that most courts learn when they try to use the coercive powers of the court against children to enforce child custody orders.
Courts don’t want to dedicate their own resources and law enforcement resources to 1) literally dragging a child out of one parent’s home and literally stuffing the child into some other home; and 2) doing so repeatedly when the child refuses to stay put. It’s a waste of law enforcement resources and the fear is the child will eventually run away (and act out in other self-destructive and dangerous ways), if not allowed to live with the parent of his/her choosing.
And courts don’t want to punish a parent for the misconduct of a child. Some courts have tried to punish noncustodial parent by holding them responsible for their children’s noncompliance with the court orders, but that doesn’t work when the noncustodial parent truly isn’t at fault. Courts realize that a noncustodial parent cannot simply, for example, 1) push the child out the door, lock it behind the child, and wish the child well in subzero degree weather; or 2) manhandle the child into the custodial parent’s car, then be charged with child abuse. And punishing the noncustodial parent often only serves to lead the child to be more determined to defy court orders.
As you can imagine, a child’s “power” to choose where he/she lives usually does not arise until the child is old enough and strong enough and willful enough to exercise some degree of autonomy over which parent with whom he/she lives. That doesn’t usually happen until children reach approximately the age of 12 or 14, although some children may start younger. Children under that age are typically unable or too afraid to exert their own preferences and wills.
Utah Family Law, LC | divorceutah.com | 801-466-9277
BRUCE RAY MCFARLAND, Appellant and Cross-appellee, v. NICOLE S. MCFARLAND, Appellee and Cross-appellant.
Opinion
No. 20190541-CA Filed June 4, 2021
Second District Court, Farmington Department
The Honorable David J. Williams
No. 084701533
Jacob K. Cowdin and A. Douglas Anderson, Attorneys for Appellant and Cross-appellee
Angilee K. Dakic and Ryan C. Gregerson Attorneys for Appellee and Cross-appellant
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN concurred.
HARRIS, Judge:
¶1Bruce Ray McFarland (Bruce) and Nicole S. McFarland (Nicole)1 divorced in 2009 pursuant to a stipulated divorce decree, but soon thereafter began to ignore many of the decree’s important provisions. However, neither party brought any matter to the attention of the district court for some eight years, until Bruce filed a petition to modify in 2017, and Nicole followed up with a request that the court hold Bruce in contempt. Both parties now appeal the court’s ruling on those requests and, for the reasons discussed herein, we affirm in part, reverse in part, and remand for further proceedings.
BACKGROUND The Divorce Decree
¶2In 2008, after almost sixteen years of marriage, Bruce and Nicole separated, and Bruce filed a petition for divorce. Soon thereafter, the parties negotiated a resolution to the divorce proceedings, and filed papers memorializing their agreement. In February 2009, the court entered a decree of divorce (the Decree) that incorporated the parties’ stipulated agreement. With regard to alimony and the house in which they lived while they were married (the Home), the parties’ agreement was straightforward: Bruce was ordered to pay $1,700 per month in alimony to Nicole, beginning in November 2008 and continuing until Nicole “remarries, cohabits, dies, for a term equal to their marriage, or further order of the Court,” and Nicole was awarded the Home, including the obligation to make the mortgage payments.
¶3But the parties’ agreement regarding custody and child support was unusual. Bruce was to have overnight custody of the parties’ four children every week from Sunday evening until Friday morning, with the parties each enjoying weekend overnight custody on an alternating basis. During the modification proceedings at issue here, Nicole acknowledged that the arrangement entitled her to fewer than 30% of the overnights; indeed, the district court found that this arrangement resulted in Bruce having “24 overnights per month with the children,” leaving Nicole with just six, and neither party takes issue with that finding. But despite the fact that Bruce was awarded more than 70% of the overnights, see Utah Code Ann. § 30-3-10.1(2)(a) (LexisNexis 2009) (defining “joint physical custody” as any arrangement in which “the child stays with each parent overnight for more than 30% of the year”), the parties labeled their arrangement “joint . . . physical custody,” perhaps because the arrangement contemplated that Nicole would pick the children up from school every day and care for them until eight o’clock p.m., at which point Bruce was to retrieve the children so that they could “stay with him overnight.”
¶4With regard to child support, the parties agreed to calculate the amount using the sole custody worksheet, even though they labeled their arrangement as joint custody, and agreed that Bruce—and not Nicole, notwithstanding the fact that Bruce had the lion’s share of the overnights—would be considered the “Obligor Parent” on the worksheet. Using these parameters, the parties agreed that Bruce would pay Nicole monthly child support equating to one-half of what the worksheet said Bruce would owe if he were the Obligor Parent, an amount the parties computed to be $739.73 per month at the time the Decree was entered, when all four children were still minors.2
Post-Divorce Events and Conduct
¶5Soon after the court entered the Decree, both parties began to ignore many of its provisions. For instance, Nicole made no mortgage payments on the Home. And Bruce made only one alimony payment (in January 2009) and three child support payments (in December 2008, and January and February 2009), but after that made no payments of either kind.
¶6In addition, with Nicole’s permission, Bruce moved back into the Home in April 2009. After that point, although Bruce made no payments denominated as alimony or child support, he did resume paying the mortgage on the Home, a payment that happened to be $1,728 per month, only slightly more than Bruce’s alimony obligation. When Bruce first moved back in, he and Nicole lived separately for a time, but beginning in September 2009, and lasting until April 2010, Bruce and Nicole resumed cohabiting as a couple, which included sharing familial expenses and reinitiating sexual relations. It is not a matter of dispute in this case that, during that seven-month period, the parties were cohabiting, as that term is used in relevant statutes and case law. See Myers v. Myers, 2011 UT 65, ¶ 17, 266 P.3d 806 (identifying the “hallmarks of cohabitation, including participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife and the sharing of the financial obligations surrounding the maintenance of the household” (quotation simplified)); see generally Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).
¶7In April 2010, Nicole enlisted in the military, and left Utah for basic training. Over the next seven years, Bruce resided in the Home with the children, and provided all necessary childcare and financial support, including making the monthly mortgage payments on the Home. Nicole served two tours of duty overseas with the military, and visited the children or took them on vacation periodically while on leave. But other than these short visits, Nicole exercised no custody or parent-time, and provided no significant financial support to the children. Eventually, in 2015, Nicole remarried.
¶8For the seven years following Nicole’s enlistment, both parties seemed content with their arrangement and, even though both were materially violating the terms of the Decree, neither filed so much as a single document with the court. In particular, neither party sought to modify the terms of the Decree, and neither party sought contempt sanctions against the other.
The Post-Divorce Filings
¶9The parties’ tacit arrangement came to an end in 2017 when Bruce sought to refinance the Home. Because Nicole had been awarded the Home in the Decree, Bruce asked Nicole to deed him the Home to facilitate the refinance. Nicole refused to authorize the refinance unless Bruce paid her half the equity, asserting that she owned the Home and that any mortgage payments made by Bruce constituted “either rent or alimony payments” that he owed her. Then, in June 2017, Bruce filed a petition to modify, followed by a motion for temporary orders in February 2018, bringing three separate provisions of the Decree to the court’s attention. First, Bruce requested that alimony be terminated, dating back to 2009. Second, Bruce asked the court to modify the Decree to award him sole physical and legal custody of the two remaining minor children, and asked that he be awarded child support payments from Nicole going forward. And finally, Bruce asked the court to modify the Decree to award him the Home, alleging that he assumed the mortgage to avoid foreclosure because Nicole had “abandoned the property when she joined the military.” While the petition and motion for temporary orders were pending, Bruce completed a refinance of the Home, apparently finding a way to close the transaction without Nicole’s authorization.
¶10 Nicole responded by filing two orders to show cause, asking the court to hold Bruce in contempt in three respects:
(1) for failing to make alimony payments; (2) for failing to make child support payments; and (3) for occupying the Home and for refinancing it without her authorization. Nicole asked the court to enter judgment in her favor for alimony and child support arrears, as well as for “the amount that [Bruce] cashed out when he refinanced” the Home, and asked the court to order that she obtain immediate “use and possession” of the Home.
¶11 After a hearing, a domestic relations commissioner certified a number of issues as ripe for an evidentiary hearing before the district court, including the following: (1) whether Bruce should be held in contempt for failing to pay alimony and, if so, the amount of arrears at issue; (2) whether Bruce should be held in contempt for failing to pay child support and, if so, the amount of arrears at issue; (3) whether Bruce should be held in contempt for refinancing the Home without Nicole’s consent; and (4) whether Bruce should be held in contempt for occupying and refusing to vacate the Home. All of the issues certified by the commissioner were framed as contempt or temporary order issues; the commissioner apparently did not envision that the hearing would be a final dispositive hearing on Bruce’s petition to modify.
¶12 In anticipation of the evidentiary hearing before the district court, both parties filed papers outlining their positions. Citing section 30-3-5(10) of the then-applicable Utah Code, Bruce argued that he did not owe any alimony arrears because his obligation to pay alimony terminated in 2009 due to “the cohabitation relationship” that the two established when they moved back into the Home together. Citing Scott v. Scott, 2017 UT 66, ¶¶ 10, 26–27, 26 n.7, 423 P.3d 1275, Nicole argued in response that, under the applicable statute as interpreted by our supreme court, a party attempting to terminate alimony for cohabitation must file a motion or petition “during [the] alleged co-habitation.”
¶13 Regarding child support, Bruce asserted that he should not be required to pay Nicole for any point after 2009, because the children had been almost entirely in his care since then. In particular, Bruce argued for the applicability of section 78B-12108 of the Utah Code, which provides that child support payments generally “follow the child,” and that changes in child support obligations can, under certain circumstances, occur “without the need to modify” the governing decree. See Utah Code Ann. § 78B-12-108(1), (2) (LexisNexis 2017). Bruce’s arguments in the pretrial briefing were entirely defensive—that is, he asserted that he should not be required to make child support payments to Nicole after 2009, but at no point did he assert an entitlement to child support arrears from Nicole regarding any time period prior to the filing of his petition to modify.
The Hearing and Subsequent Ruling
¶14 At the ensuing evidentiary hearing, the court heard live testimony from Bruce, Nicole, Bruce’s father, and the parties’ adult daughter. At the conclusion of the evidence, the court took the matter under advisement, and asked the parties to submit written closing arguments in the form of post-trial briefs.
¶15 In her closing brief, Nicole attempted to rebut Bruce’s cohabitation claim with two arguments. First, Nicole asserted that the governing statute, as interpreted in Scott, required Bruce to have requested termination of alimony during the period of cohabitation. Second, Nicole argued that, even if Bruce’s request was timely, no cohabitation occurred because Bruce, the payor spouse, did not qualify as “another person” within the meaning of the governing statute. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that alimony terminates if “the former spouse is cohabitating with another person”). For his part, while he attempted to rebut all of Nicole’s claims, Bruce again made no affirmative claim to child support arrears running in his direction.
¶16A few weeks later, the court issued a written ruling. With regard to alimony, the court found Bruce in contempt for failing to make payments. First, the court concluded that the mortgage payments Bruce made were just that—mortgage payments on a house Bruce lived in—and could not be considered alimony, and it found that Bruce had not paid any alimony since 2009. Second, the court determined that, even if all of the hallmarks of cohabitation were present between September 2009 and April 2010, cohabitation had not occurred because “‘cohabitation’ does not include meeting the elements of cohabitation with the ex-spouse.” Accordingly, the court concluded that Bruce’s alimony obligation had not terminated in 2009 when the parties moved back in together, and that Bruce was in contempt for not paying alimony between 2009 and Nicole’s remarriage in 2015. Based on those findings, the court computed the alimony arrearage amount to be “$150,744.50 plus post-judgment interest,” and ordered Bruce to pay that amount.
¶17 With regard to child support, the court found that Bruce was not in contempt. The court accepted Bruce’s argument that, pursuant to section 78B-12-108 of the Utah Code, the child support obligation was to follow the children, and concluded that, pursuant to subsection (2) of that statute, which the court found applicable, Bruce was relieved of his child support obligation dating back to 2009, even though he did not file a petition to modify until 2017. In addition, the court offered its view that, even if section 78B-12-108 were inapplicable, “it would not be equitable to require” Bruce to pay child support to Nicole for time periods in which he cared for the children. On those bases, the court determined that Bruce had no obligation to pay child support to Nicole after 2009. But the court did “not find that [Nicole] was required to pay child support payments to [Bruce] after leaving for military service,” noting that, in its view, Bruce had not made any such affirmative claim, and instead had raised only defensive claims regarding any obligations he might have to Nicole.
¶18With regard to the Home, the court declined to find Bruce in contempt for not vacating the Home, refusing to quitclaim it to Nicole, or refinancing it. However, the court made no ruling on altering the Decree’s provision that originally awarded the Home to Nicole, stating simply that Bruce “shall be allowed, on a temporary basis, to remain” in the Home “until the matter is brought forth and certified” by the commissioner as ripe for an evidentiary hearing.
ISSUES AND STANDARDS OF REVIEW
¶19 Both parties appeal the district court’s ruling, raising two main issues for our review. First, Bruce challenges the court’s determination that his alimony obligation was not terminated by cohabitation. In advancing this argument, Bruce relies entirely on Utah’s alimony statute, and asserts that the court’s interpretation of that statute was incorrect. See Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (stating that a payor spouse’s obligation “terminates upon establishment by the party paying alimony that the former spouse is cohabitating with another person”).3 “The proper interpretation and application of a statute is a question of law which we review for correctness . . . .” Veysey v. Veysey, 2014 UT App 264, ¶ 7, 339 P.3d 131 (quotation simplified).
¶20 Next, both parties challenge the court’s child support rulings. Nicole takes issue with the court’s determination that Bruce did not owe her child support payments, pursuant to the terms of the Decree, after 2009. And Bruce asserts that the court erred by declining to order Nicole to pay child support arrears to him. Because the parties’ arguments center on interpretation and application of section 78B-12-108 of the Utah Code (Section 108), we review the district court’s decision for correctness. See Veysey, 2014 UT App 264, ¶ 7.4
ANALYSIS I. Alimony
¶21We first address Bruce’s claim that his alimony obligation terminated by operation of statute when the parties cohabited in 2009 and 2010. Because Bruce’s position is directly foreclosed by our supreme court’s decision in Scott v. Scott, 2017 UT 66, 423 P.3d 1275, we reject his challenge to the district court’s ruling.
¶22 At all relevant times during the events precipitating this appeal, Utah’s alimony statute provided that alimony obligations “to a former spouse terminate[] upon establishment by the party paying alimony that the former spouse is cohabitating with another person.” Utah Code Ann. § 30-3-5(10) (LexisNexis 2017) (emphasis added).5 In Scott, our supreme court was asked to interpret the same version of this statute. See 2017 UT 66, ¶ 3. After noting the statute’s use of present tense language—“is cohabitating”—the court interpreted the statute as requiring “the paying spouse to establish that the former spouse is cohabiting at the time the paying spouse files the motion to terminate alimony.” See id. ¶¶ 23, 33. While the Scott opinion was not published until 2017, the statutory language the court was interpreting in that case had been in effect at all times relevant to this case. See supra note 5. That is, Scott did not introduce a new rule that was effective only prospectively; rather, it provided an interpretation of statutory text that had already been in effect for several years. See DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 56 (2015) (“[J]udicial construction of a statute ordinarily applies retroactively.”); see also Rivers v. Roadway Express, Inc., 511 U.S. 298, 311–12 (1994) (stating that “the principle that statutes operate only prospectively, while judicial decisions operate retrospectively, is familiar to every law student” (quotation simplified)).
¶23 Under the circumstances presented in this case, any cohabitation between Bruce and Nicole ceased sometime in early 2010. But Bruce did not file his petition to modify until 2017. It is therefore undisputed that the cohabitation to which Bruce points had long since ceased by the time he filed his petition to modify. Thus, under the statute then in effect (as interpreted by Scott), that petition was filed some seven years too late. Accordingly, Bruce cannot now complain that his alimony obligation should be terminated, by operation of statute, due to the parties’ long-since-concluded cohabitation. Bruce has therefore not carried his burden of demonstrating error in the district court’s ruling that Bruce’s alimony obligation lasted until Nicole’s 2015 remarriage,6 or in the court’s rulings holding Bruce in contempt for failing to pay alimony from 2009 through 2015 and ordering him to pay past-due alimony.7
Child Support
¶24 Next, we address the parties’ respective challenges to the district court’s child support rulings. As noted, Nicole takes issue with the court’s ruling that Bruce’s child support obligations to her, as set forth in the Decree, ended in 2009, and that therefore Bruce could not be held in contempt for not meeting those obligations. Building on that same ruling, Bruce takes issue with the court’s reluctance to go a step further and order Nicole to pay him child support arrearages dating to 2009. We begin our analysis by discussing some of the broad overarching principles governing modification of child support orders, including a discussion of Section 108 in particular. We then address the parties’ respective challenges, in turn, beginning with Nicole’s.
A
¶25In general, decrees in domestic relations cases are binding final judgments that may be modified “only under certain conditions.” Kielkowski v. Kielkowski, 2015 UT App 59, ¶ 21, 346 P.3d 690; see also Robertson v. Stevens, 2020 UT App 29, ¶¶ 6–7, 461 P.3d 323 (explaining that once “judgment is entered” in a divorce case, “the court’s power to modify the judgment is limited” (quotation simplified)). While there are several tools that can generally be used to modify final judgments, see, e.g., Utah R. Civ. P. 60(b), one tool that is specific to family law cases is the petition to modify, see id. R. 106(a) (stating that, in most cases, “proceedings to modify a divorce decree . . . shall be commenced by filing a petition to modify”); see also Ross v. Ross, 2019 UT App 104, ¶ 11, 447 P.3d 104 (“[R]ule 106 establishes a general rule . . . that any changes to divorce decrees must be brought about by the filing of a petition to modify.”). Parties in family law cases may use this tool, in accordance with applicable statutes and rules, to seek modification of various provisions of decrees, including child support provisions. See Utah Code Ann. § 78B-12-210(9)(a) (LexisNexis 2017) (“A parent . . . may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances.”); see also id. § 30-3-5(3) (“The court has continuing jurisdiction to make subsequent changes or new orders for the custody of a child and the child’s support, maintenance, health, and dental care, and for distribution of the property and obligations for debts as is reasonable and necessary.”); id. § 30-3-5(8)(i)(i) (“The court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances . . . .”).
¶26 But in general, modifications to a decree’s provisions regarding child support payments may date back only to “the month following service” of the petition to modify “on the parent whose support is affected.” See id. § 78B-12-112(4); see also McPherson v. McPherson, 2011 UT App 382, ¶ 17, 265 P.3d 839 (stating that “the statute does limit the time period during which retroactive modification is available”). That is, as concerns child support provisions, parties are generally barred from obtaining modifications that date back further than the first day of the month after the month in which the petition to modify was served on the opposing party.
¶27 One potential exception to this general rule appears in Section 108, a statutory provision entitled “Support Follows the Child.” See Utah Code Ann. § 78B-12-108 (LexisNexis 2017). That section, in relevant part, reads as follows:
Obligations ordered for child support and medical expenses are for the use and benefit of the child and shall follow the child.
Except in cases of joint physical custody and split custody as defined in Section 78B-12-102, when physical custody changes from that assumed in the original order, the parent without physical custody of a child shall be required to pay the amount of support determined in accordance with [calculation guidelines found in other code sections] without the need to modify the order for . . . the parent who has physical custody of the child.
Id. (emphasis added). Thus, Section 108 contains an overarching mandate that child support payments “shall follow the child,” and provides that, under certain limited circumstances, child support obligations can change “without the need to modify” the child support provisions in the governing decree. Id.; see also Hansen v. Hansen, 2012 UT 9, ¶ 13, 270 P.3d 531 (stating that, under certain circumstances, Section 108 “allows redirection of child support [payments] without modification of the support order”). In this way, Section 108 constitutes an exception to the general rule that modifications to child support provisions may date back only to the month following service of the petition to modify on the opposing party: where Section 108 applies, it may allow modification of child support awards even further back in time.
¶28 But this exception comes with distinct statutory limits. Indeed, our supreme court has noted that Section 108 “contains two provisions: (1) a general statement that support shall follow the child and (2) a specific provision providing guidelines for redirection of child support to a new physical custodian.” Hansen, 2012 UT 9, ¶ 7. And the court has already foreclosed any argument that subsection (1)’s general statement—that child support “shall follow the child”—operates by itself “to redirect support payments any time anyone provides any shelter or sustenance to a child.” See id. ¶ 10. Instead, the specific requirements of subsection (2) operate to “modif[y] the general statement in subsection (1),” and those specific requirements serve as the prerequisites for entitlement to a retroactive change in child support that dates back further than the date of a duly served petition to modify. See id. ¶ 11.
¶29 Under the provisions of subsection (2), a litigant can obtain a change in a child support provision even “without the need to modify the order” itself, but only if two conditions are met: (a) there must be a change in “physical custody . . . from that assumed in the original order,” and (b) the case must not be one involving “joint physical custody.” See Utah Code Ann. § 78B-12-108(2).
B
¶30 Bruce asserts that Section 108 applies here, and allows him to obtain retroactive modification, dating all the way back to 2009, of the Decree’s child support provisions, even though he did not seek modification of either the custody provisions or the child support provisions until 2017. The district court agreed with Bruce’s interpretation of Section 108, and determined that Bruce was not in contempt for failure to pay Nicole child support between 2009 and 2017 because he had been caring for the children during that time and because child support should “follow the children.” (Citing Utah Code Ann. § 78B-12-108.)
¶31Nicole challenges the court’s interpretation of Section 108. We agree with Nicole because, for two independent reasons, Section 108 is inapplicable here. First, this is not a case in which physical custody ever legally changed “from that assumed in the original order.” See Utah Code Ann. § 78B-12-108(2) (LexisNexis 2017). And second, even assuming that some sort of de facto change of parent-time occurred in 2010 when Nicole joined the military, that change did not constitute a change in physical custody under the operative definition of that term. See id. §§ 30-3-10.1(3)(a), 78B-12-102(15) (each defining “joint physical custody” for its respective chapter).
1
¶32In order for Section 108’s exception to apply, the situation must involve a change in “physical custody . . . from that assumed in the original order.” See id. § 78B-12-108(2). The term “physical custody,” as used in this statute, is a “legal term of art” that “involve[s] much more than actual possession and care of a child.” See Hansen, 2012 UT 9, ¶¶ 12, 15, 19. “A physical custodian also has a legal responsibility to provide supervision and control.” Id. ¶ 15 (emphasis added).
¶33 Given this definition, a change in “physical custody” cannot occur without some sort of “formal legal process[].” Id. ¶¶ 19, 24. In most cases, this occurs by court order following the filing of a petition to modify. See id. ¶¶ 21, 25. In other “rare circumstances,” this can occur “by statute without the need for a hearing or court order.” Id. ¶ 25. But in any event,
child support should be redirected only to those persons or entities who acquire the rights and responsibilities of the child’s new “physical custodian” under the law. Usually that will happen only after adjudication and a formal order, but in all cases it requires fulfillment of the statutory procedures and standards for a change in physical custody. The actual provision of sustenance and support is insufficient.
Id.
¶34 In this case, no one disputes that Bruce assumed all responsibility for “sustenance and support” of the children after April 2010. See id. But in this context, provision of additional sustenance and support to the children beyond that anticipated in the Decree is not enough to effectuate an actual, legal change in physical custody. See id. Bruce took no steps—at least not until 2017—to follow the “formal legal processes” typically used to effectuate an actual change of physical custody. See id. ¶ 24. And Bruce makes no argument that this case presents any “rare circumstances” in which custody can change by operation of statute, even in the absence of a petition to modify. See id.
¶35Thus, no change in “physical custody”—in an actual legal sense, as required by the “term of art” definition of the statutory phrase, see id. ¶ 12 (quotation simplified)—occurred in April 2010, or at any time prior to the filing of Bruce’s petition to modify. Because physical custody did not change, Section 108’s narrow exception to the usual retroactivity rules governing modification of child support orders does not apply here, and therefore it does not enable Bruce to seek changes to the Decree’s child support obligations dating any further back than 2017.
2
¶36 Moreover, even if we were to assume, for purposes of argument, that a change in “physical custody” could theoretically be effectuated merely by a parent’s provision of additional sustenance and support beyond that required by the governing child support order, no such change occurred on the facts of this case. We have previously stated that “[c]ustody and parent-time are conceptually distinct.” See Ross v. Ross, 2019 UT App 104, ¶ 14 n.3, 447 P.3d 104. By statutory definition, there are two kinds of physical custody—sole physical custody and joint physical custody—with the dividing line based on the number of overnight visits enjoyed by each parent. See Utah Code Ann. §§ 30-3-10.1(3)(a), 78B-12-102(15) (both stating that “joint physical custody means the child stays with each parent overnight for more than 30% of the year, and both parents contribute to the expenses of the child in addition to paying child support” (quotation simplified)). Because either parent, in any given case, could be awarded sole physical custody— defined as having at least 70% of the overnights—there are three possible physical custody arrangements: (a) Parent 1 has sole custody; (b) Parent 2 has sole custody; and (c) the parents share joint custody. When a change occurs that causes one parent to obtain enough additional overnights to move from one category to another (e.g., from 25% of overnights to 35%, or from 65% to 75%), there has been a change in physical custody. See Ross, 2019 UT App 104, ¶¶ 16–17, 17 n.5. But when a change occurs in which one parent obtains a few additional overnights but not enough to move from one category to another, the change constitutes only a change in parent-time, and not a change in physical custody, as that term is statutorily defined. See id. ¶ 16 (noting that, in relocation cases, a parent need not file a petition to modify if scheduling changes necessitated by the proposed relocation would not change the statutory custody designation, and would change only parent-time).
¶37 In this case, the parties started out with an arrangement, under the Decree, in which Bruce had twenty-four overnights each month and Nicole had only six. Although the parties described that arrangement, in the Decree, as a joint custody arrangement, the label the parties assigned to the arrangement is inconsequential. See Stephens v. Stephens, 2018 UT App 196, ¶ 29, 437 P.3d 445 (stating that the “designation of ‘joint physical custody’ or ‘sole physical custody’” used in a decree “is not as important as whether the custody arrangement [actually] exceeds the statutory threshold for joint physical custody” (quotation simplified)). And here, despite the parties’ label, their arrangement was actually a sole custody arrangement. See Utah Code Ann. § 78B-12-102(15). As noted, the district court made a specific (and unchallenged) finding on this point, and correctly concluded that, because the Decree awarded Nicole only “approximately 20% of the overnights,” it described a sole custody arrangement.
¶38 Thus, the more recent arrangement, following Nicole’s departure into the military, did not result in a change of custody. After Nicole left, Bruce went from about 80% of the overnights to nearly 100% of the overnights. Thus, Bruce had sole physical custody of the children under the original arrangement, and he maintained sole physical custody of the children after Nicole left. See id. In this situation, while Nicole’s departure did result in practical (if not official) changes to the parties’ division of parent-time, it did not effectuate any change in physical custody, under the statutory definition of that term.
¶39 Section 108 applies only in instances where “physical custody changes.” See id. § 78B-12-108(2). For both of the reasons just discussed, no change in physical custody occurred here, and therefore Section 108 cannot provide Bruce an escape from the usual rule that modifications to a domestic decree’s child support provisions cannot date back any further than the month following service of the petition to modify. See id. § 78B-12112(4). We therefore sustain Nicole’s challenge to the district court’s interpretation of the relevant statutes.
3
¶40 The district court’s ruling also included an alternative basis for declining Nicole’s request that Bruce pay child support arrearages. Specifically, the court stated as follows:
Finally, and regardless [of] whether [Section 108] applies here, it would not be equitable to require [Bruce] to pay child support arrearages to [Nicole] in this case. Even if that statute does not apply directly, subsection (1) is instructive of the legislature’s intent that child support “is for the use and benefit of the children.” . . . It would not be equitable to acknowledge that [Bruce] was the sole provider after moving back into the [Home] and especially after [Nicole] entered the military, acknowledge that [Nicole] provided very little, if any, support to the children since that time, but nonetheless require [Bruce] to pay the alleged child support arrearages requested by [Nicole].
¶41We do not necessarily disagree with the court’s sentiment (although we note that, in a big-picture sense at least, there are equities on the other side of the equation too: we can see wisdom in a bright-line rule requiring parties to file petitions to modify child support provisions, and in limiting parties’ ability to obtain changes to decrees that date back any further than the month following service of the relevant petition to modify). Looking just at the facts of this case, there does seem to be something intuitively inequitable about requiring Bruce to pay child support arrearages to Nicole. And we acknowledge that district courts are often given wide discretion to apply equitable principles in family law cases. See Harmon v. Harmon, 491 P.2d 231, 232 (Utah 1971) (“In order to carry out the important responsibility of safeguarding the interests and welfare of children, it has always been deemed that the courts have broad equitable powers.”).
¶42 But our legislature has enacted a number of statutes that govern certain aspects of family law cases, and we are aware of no principle of law that allows courts to override statutes, in particular cases, simply out of generalized equitable concerns. See Martin v. Kristensen, 2021 UT 17, ¶ 53 (stating that courts have “no equitable power to override” statutory mandates due to generalized concerns of “public policy and equity”). At a minimum, the district court has not adequately explained how its equitable concerns, in this situation, allow it to supersede statutory mandates or interpretations of those statutes by our supreme court. For instance, the district court’s reliance on subsection (1) of Section 108 as being “instructive of the legislature’s intent” that child support obligations shall “follow the child[ren]” appears misplaced, given our supreme court’s explanation, in Hansen v. Hansen, that “[s]ubsection (1)’s general directive cannot possibly be interpreted unqualifiedly . . . to redirect support payments any time anyone provides any shelter or sustenance to a child,” and that subsection (1) is “modifie[d]” by the “specific limitation[s]” found in subsection (2). See 2012 UT 9, ¶¶ 10–11, 270 P.3d 531. And as we have noted, supra ¶¶ 30–39, the prerequisites of subsection (2) are not satisfied here. Apart from the language in subsection (1), the court does not otherwise explain how generalized equitable considerations, no matter how weighty, can justify modification of a child support order back beyond the month following service of the petition to modify, given our legislature’s clear directive that such orders may be modified “only from the date of service of the pleading on the obligee.” See Utah Code Ann. § 78B-12112(4).
¶43 We observe that there may well be specific doctrines of equity or discretion that could apply in this situation to temper Nicole’s requests. Nicole presented her request in the context of an order to show cause seeking contempt, a legal doctrine that has its own elements and requirements, see Von Hake v. Thomas, 759 P.2d 1162, 1172 (Utah 1988) (setting forth the required showing for a contempt finding), in which courts are afforded discretion in selecting an appropriate sanction once contempt is found, see Utah Code Ann. § 78B-6-310(1) (LexisNexis 2018) (stating that, “[i]f the court finds the person is guilty of the contempt, the court may impose a fine” or other punishment (emphasis added)); id. § 78B-6-311(1) (stating that a court “may order” the contemnor to pay the aggrieved party “a sum of money sufficient to indemnify and satisfy the aggrieved party’s costs and expenses” (emphasis added)). Alternatively, various equitable doctrines may apply in situations like this, depending on the circumstances. See, e.g., Soter’s, Inc. v. Deseret Fed. Sav. & Loan Ass’n, 857 P.2d 935, 939–40 (Utah 1993) (discussing the doctrine of waiver and its elements); Veysey v. Veysey, 2014 UT App 264, ¶ 16, 339 P.3d 131 (discussing the doctrine of laches and its elements); Bahr v. Imus, 2009 UT App 155, ¶ 6, 211 P.3d 987 (discussing the doctrine of equitable estoppel and its elements). We express no opinion as to the applicability of any such doctrine to the facts of this case. But the district court did not ground its child support ruling—that Bruce should not be required to make child support payments—in its post-contempt sentencing discretion or in any specific equitable doctrine; instead, as we interpret its order, it concluded that, due to unspecified equitable considerations, Bruce should be relieved from any obligation to make payments in the first place. In our view, the court has not adequately explained how equitable considerations can override statutory commands in this case.
¶44Accordingly, we reverse the district court’s determination that Bruce was not “required to pay child support payments to [Nicole] after [Nicole left] for military service,” and we remand the matter for further proceedings on Nicole’s request that Bruce be held in contempt for failing to make child support payments.
C
¶45Finally, given our conclusion regarding Nicole’s challenge to the district court’s child support ruling, we can readily dispose of Bruce’s challenge to that same ruling. As an initial matter, we agree with the district court’s conclusion that Bruce made no affirmative claim, before the district court, to any child support arrears dating back further than the service of his petition to modify. On that basis alone, the district court was justified in not awarding him any. But more substantively, for the reasons already explained, we find no merit in Bruce’s argument that Section 108 operates to allow him to look all the way back to 2009 for modification of the Decree’s child support provisions.
CONCLUSION
¶46 The district court correctly determined that Bruce’s alimony obligation was not terminated—at least not under the alimony statute—by the parties’ cohabitation in 2009 and 2010, because the statute required Bruce to file a petition seeking termination while the cohabitation was still occurring, and he did not do so. Accordingly, the district court did not err by holding Bruce in contempt for failing to pay alimony after 2009, and in ordering Bruce to pay past-due alimony through 2015, and we affirm those orders.
¶47 However, the district court erred in its interpretation of Section 108, and erred in concluding that Section 108 operated to relieve Bruce of his obligation, under the Decree, to continue to pay Nicole child support after 2010. In this case, neither Section 108, nor generalized equitable concerns, operates to relieve Bruce of that obligation, and neither allows Bruce to obtain a modification of his child support obligations dating back any further than the month following service of his petition to modify. Accordingly, we reverse the district court’s determination to the contrary, and remand the case for further proceedings, consistent with this opinion, on Nicole’s request for contempt relating to child support and on Bruce’s petition to modify.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I have custody of my child. He left to go to his mom’s last Friday for the weekend. He is refusing to come home because he wants to live there. What happens now?
I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.
And that answer is: realistically speaking, probably nothing.
As a divorce and family law attorney, I have been on both sides of this issue, meaning I’ve represented the parent with custody of the child who won’t come back, and I’ve also represented the noncustodial parent to whose house the child has “fled” and won’t leave.
This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.
Briefly, if the children are old enough that they cannot be physically controlled by a parent and forced into a car from the noncustodial parents house back to the custodial parent’s house, then the courts are usually not going to intervene. This means that a court will, in fairness and realistically, tell the parents that pragmatically there’s really nothing that they ought to do to enforce the child custody order if the child himself or herself is old enough to put up a fight and/or call the police and/or DCFS and report you for child abuse if you try to force them into the car to go back to the custodial parent’s house. Besides, the child who is old enough to put up a fight is also likely old enough to run away from the noncustodial parents home if anyone tries to force him or her to reside with a parent with whom the child doesn’t want to live.
And so, you get in a situation where the child is disobeying the court’s custody order, but most courts either don’t have the cats to hold the child in contempt of court or don’t feel it is appropriate to sanction a child who won’t comply with the court’s child custody orders. Yet these same courts will also often refuse to modify the child custody award because they don’t want to acknowledge that children, of all people, have the de facto power to defy court orders with impunity.
Next, you need to be aware of the possibility that your custodial parent ex will try to blame you for your child refusing to return to the custodial parent’s home, regardless of whether that is true. Many times, a perfectly innocent noncustodial parent will tell his or her acts and the court, “Look, I’ve told the child what the court order is and that both our and I are expected to comply. But the child refuses to comply anyway. Now what you want me to do? Kick the child out and lock the door behind him?” Some courts sympathize with that predicament, others don’t buy it. Which means it is entirely possible that you would be held in contempt of court for doing absolutely nothing wrong, if the court believes you enticed or coheirs the child to say he or she wants to stay with you. So you need to keep that in mind.
So if you are a noncustodial parent of a child who refuses to reside with the court ordered custodial parent, then you must ask yourself a few questions:
First, if the child refusing to live with the custodial parent because the child is a spoiled brat who has no legitimate reason for refusing to live with the custodial parent? If the answer is yes, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge.
Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.
If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.
Utah Family Law, LC | divorceutah.com | 801-466-9277
I am the noncustodial parent. Our child came to my house for parent-time and now refuses to leave because he wants to live with me. What happens now?
I will answer this question in the context of my experience as a lawyer in the jurisdiction where I practice divorce and family law, which is Utah.
This is a weird area of Utah law because you’ll hear the legislature and the courts tell you that children don’t get to choose where they live, and then when children do that very thing (i.e., refuse to live where the court orders them to live), the courts find themselves essentially powerless to change anything. At least that’s my experience over the 24 years I’ve been in practice.
Now before some of you start licking your lips and scheming, thinking, “I’m the noncustodial parent, but I can change that by simply telling our child to choose to refuse to return to the custodial parent’s house,” you need to be aware of the realities.
If you’re the noncustodial parent and your child or children are under the age of 14 or so, and they claim that they don’t want to live with the custodial parent, there’s a very good chance that the court is going to believe that you are a puppet master who coached the children or otherwise induced or coerced them into claiming they want to live with you. That may not be true, but you’re going to be met with that kind of skeptical presumption. So if you are the noncustodial parent with young children who you assert claim they don’t want to live with the custodial parent, you have an uphill battle ahead of you. If you are the noncustodial parent and a father, you have an almost impossibly uphill battle ahead of you.
If, however, your children are 14 years or older, and you are the noncustodial parent with whom your children say they want to live, it will be harder for your ex and/or the court to presume that the children are lying and/or don’t have good reasons for wanting to live with you. Again, if you are the father making this claim, your claim will be met with more skepticism than if you were the noncustodial mother making such a claim. Why is this? Because there is a pernicious belief in the legal system that fathers are generally worse parents than our mothers, that fathers don’t want custody of their children, and that the only reason fathers would seek custody of their children is to avoid paying child support. As a result of these beliefs, fathers who seek custody of their children are met with not just skepticism, but often derisive skepticism. Forewarned is forearmed.
So, if you are a noncustodial parent who is good and decent, and your child honestly and sincerely comes to you saying, “mom/dad, I can’t stand living with the custodial parent anymore, and I want to live with you,” how do you proceed?
First, if the child refusing to live with the custodial parent because the child just wants to spend more time with you and/or less time with the custodial parent, and the custodial parent is not neglecting or abusing the child in any way, then you as the noncustodial parent have both a legal and moral obligation to talk the child into going back to the custodial parent’s home, or if persuasion doesn’t work, imposing limitations and restrictions and punishments upon the child so that the child won’t get the impression that he or she is in charge. At the same time, the custodial parent needs to acknowledge the child’s desires to spend more time with the noncustodial parent as being a legitimate concern that needs to be addressed and resolved, and that usually means the custodial parent agreeing to give the child and the noncustodial parent more time together. If the custodial parent refuses to do the right thing, you may ask whether it’s wise to petition the court for a modification of the child custody award, so that you and the child get more time together. Unfortunately, odds are that if you file a petition to modify child custody and the only basis for your petition is the child’s desire to spend more time with you, you will probably lose. While it is technically and conceivably possible to win such a petition, usually the courts in Utah require more than just the child’s desire as the basis for a modification. And what form does this “more” take? Typically, you would have to show that the custodial parent is neglecting and/or abusing the child to get a modification of the child custody award.
Second, if the child is refusing to reside with the custodial parent because the custodial parent is truly neglectful and/or abusive, and if you have independently verifiable proof of this, you have the option of petitioning the court to modify the child custody award, changing the custodial parent from your ex to you. While that petition is pending, your child may refuse to return to the custodial parent’s home, and for reasons at least you and the child know to be valid. Whether the court allows your child to stay with you depends upon how your court views the situation and what is best for the child.
If you find yourself in this kind of situation, whether you are the custodial parent or the noncustodial parent, this is one of those situations where you need to seek good legal advice immediately, to help ensure that neither you nor the child is victimized.
Utah Family Law, LC | divorceutah.com | 801-466-9277
How do I console a father who has lost custody of his child?
“He’s [the father who lost custody] permanently damaged.” That’s what someone else wrote in response to your question. It’s true. Time lost between a parent and child is never found. These kinds of wounds can heal, but rarely will they heal fully or not leave scars.
There is still not just some consolation, but much consolation to be found, however.
First, all of us suffer injustices in life yet the overwhelming majority of us still have far more reasons to be happy than miserable. So does Dad. That’s not a Pollyanna view of life, it’s a fact. And a fact one must not let grief blind Dad to.
If one focuses on the negative to the exclusion of the good and positive, then all one will see is the negative and miss out on most or even all of the good. Parents who are alienated from their children have an obligation to themselves not to dwell on it. Feel the pain, of course. Don’t deny it. It’s inevitable and it’s necessary to let the pain run its proper course before you can start to recover.
But don’t let the pain drown you. Don’t let the pain and the bitterness deprive you of all the other good things life has in store for you. That’s what your alienating ex-spouse is hoping for. At the very least don’t give your alienating ex-spouse the satisfaction. Your kids need to see you can rise above this so that they believe they can rise above adversity too.
Second and more importantly (and this is the truth, even if it’s new to you or you think it’s silly; regardless, you have nothing to lose by exploring whether there really is consolation to be found here), by suffering and dying for you (and for your children), Jesus Christ has the power not only to right all wrongs in the next life, but has the power to comfort you and help you heal in this life now as well.
children need the care of their mothers more than the care of their fathers;
and thus
children should spend most of their time in the care of their mothers but have “a relationship” with their fathers by seeing them every other weekend, once a week, and on alternating holidays.
All other “reasons” for presuming that sole or primary custody of a child or children should be awarded to the mother derive from these three false premises, which premises/presumptions are extraordinarily difficult for a father to overcome, even if all he seeks is an award of joint equal child custody.
You don’t. Too much at stake. Too hard to do on your own. I’m a lawyer (a divorce and family law attorney), and although I don’t drink, if I were charged with DUI (even if I knew I was innocent), I wouldn’t try to defend myself without the help of a skilled and experienced criminal defense attorney who knows DUI law and defense backward and forward.
It’s a shame that lawyers are so expensive. I get it. But a DUI can cripple you for years, even for life, sometimes. You have to defend yourself hard because no one else in the system will go to bat for you. The prosecutors and judge aren’t interested in your story (they’ve heard them all and they’re jaded beyond belief).
KRISTEN PULHAM,
Appellee,
v.
WILLIAM KIRSLING,
Appellant.
Opinion
Nos. 20150577-CA and 20160236-CA
Filed April 12, 2018
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 104901246
Margaret S. Edwards, Attorney for Appellant
Steve S. Christensen and Clinton R. Brimhall, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN concurred.
POHLMAN, Judge:
¶1 This case involves two appeals in the same domestic relations dispute.[1] In the first appeal (the First Appeal), William Kirsling challenges several aspects of the amended decree entered in his divorce from Kristen Pulham. In the second appeal (the Second Appeal), Kirsling challenges the trial court’s denial of his petition to modify the divorce decree’s custody arrangement. We affirm the trial court’s decisions in both appeals.
BACKGROUND
The Trial and the Amended Decree
¶2 Pulham and Kirsling were married in 2008 and separated in 2010. The parties had one child (Child) born during the marriage. In June 2012, the trial court entered a bifurcated decree of divorce, reserving several issues for trial.
¶3 At a bench trial in 2014, the parties contested the issues of custody, child support, past-due child support, and unreimbursed child care expenses. Each party also alleged that the other party was in contempt of the court’s prior orders and should therefore face sanctions.
¶4 On Child’s custody, the trial court made detailed findings. Among other things, it found that Pulham had remarried, had a son with her new husband, and was living in Tooele, Utah. The court also found that Pulham had been the primary caregiver of Child since birth and that, at the time of trial, Pulham was unemployed and was acting as the full-time caregiver of her younger son and Child.
¶5 Regarding Kirsling, the court found that he was living in Taylorsville, Utah, with his girlfriend and her children, and that Kirsling’s older son from a previous marriage lived with Kirsling part-time. The court also found that Kirsling had resided in various places, including Brigham City, Utah, and Phoenix, Arizona, for lengthy periods after the parties separated. The court found that even though Kirsling’s “contact and visitation with [Child] ha[d] been inconsistent for much of that time,” his contact had “stabilized considerably” in the year leading up to trial.
¶6 Although Kirsling and Pulham agreed at trial that it would be in Child’s best interest if they shared joint physical and legal custody, they sharply disagreed about the details of that custody, including where Child should be enrolled in school and with whom she should primarily reside. A custody evaluator prepared a custody evaluation and testified about it at trial.
¶7 Kirsling requested a court order requiring Child to enroll in the school near his home in Taylorsville for three years, at which point Child would then transfer to the school near Pulham’s home for the latter half of elementary school. The court rejected Kirsling’s request, reasoning that his plan would require Child “to spend considerable time commuting by car between Taylorsville and Tooele”—amounting to “upwards of an hour each way, before school and after school”—and that it was not in Child’s best interest to do so merely to accommodate Kirsling’s preferred parenting plan. The court also reasoned that Kirsling’s plan would require Child to change elementary schools and that such a plan, which would put Child through “an unnecessary adjustment of surroundings, friends and routine,” was not in Child’s best interest.
¶8 In the November 2014 amended divorce decree (the Amended Decree), which followed the earlier bifurcated decree, the trial court awarded the parties joint physical and legal custody. The court also ordered that Pulham would be the primary custodial parent and would have the final say in parenting decisions for Child, including which school Child would attend.
¶9 As for parent-time, the court determined that a standard parent-time order, as anticipated under Utah Code section 30-3-35, did “not provide sufficient parent time” for Kirsling and was not in Child’s best interest. As a result, the court awarded Kirsling additional parent-time in a manner that avoided “creating the attendant travel time that would be inflicted upon [Child] by [Kirsling’s] proposed parenting plan.”
¶10 On future child support, the trial court found that it would be calculated based on Pulham’s monthly income of $30 and Kirsling’s monthly income of $4,580, “which are the stipulated monthly gross incomes” of the parties. Then, referencing the Utah Code and a custody worksheet,[2] the court ordered Kirsling to pay Pulham $548 per month for child support.
¶11 On past-due child support, the trial court found that the evidence supported Pulham’s claim that Kirsling had an outstanding obligation for a period before 2012. The court also found that Pulham incurred fees paid to the Office of Recovery Services (ORS) due to Kirsling’s “failure to timely pay his child support obligation.” Because Kirsling had not been “consistently responsible for payments until ORS intervened,” the court agreed with Pulham that Kirsling should reimburse her for the ORS fees. Accordingly, the court ordered Kirsling to pay Pulham for past-due child support and ORS fees.
¶12 On unreimbursed child care expenses, the trial court found that Pulham had shown that Kirsling had not paid his share of some expenses. The court ordered Kirsling to pay Pulham those expenses.
¶13 Finally, on the allegations of contempt of court, the trial court found that “insufficient evidence was presented at trial to warrant sanctions for either party.” Thus, the court dismissed all charges of contempt.
The Motion for a New Trial
¶14 Kirsling moved for a new trial pursuant to rule 59(a) of the Utah Rules of Civil Procedure.[3] The motion was accompanied by an unsworn document signed by his attorney that purported to be Kirsling’s affidavit. As relevant here, Kirsling challenged the trial court’s decisions regarding child support and custody as well as the amounts Kirsling owed to Pulham for past-due child support and child care expenses.
¶15 With respect to the amounts owed to Pulham for past-due child support and child care expenses, Kirsling contended that, under rule 59(a)(4), he had newly discovered evidence that he could not have produced at trial. Referring to Pulham’s testimony that she did not receive a particular payment, he asserted that post-trial he was “able to obtain a photocopy of the cashed money order that was presented to [Pulham’s] counsel as settlement for the financial issues of the case” and that the new information affected the amounts he owed Pulham.
¶16 In denying the motion, the trial court began by characterizing the purported affidavit as “an argument by [Kirsling’s] counsel, complaining generally of the failure of the Court to find in [Kirsling’s] favor.” The court then rejected Kirsling’s newly discovered evidence argument, explaining that Kirsling had not established “whether or why he was unable to obtain this evidence prior to trial” and also had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”[4]
¶17 Kirsling raised another argument under rule 59(a)(6), attacking the court’s determination that Pulham’s gross monthly income was $30 for child support purposes. Kirsling argued that the evidence was insufficient because the court did “not show[] why Ms. Pulham’s income was not calculated” based on her employment potential and probable earnings pursuant to a statute governing the imputation of income. Kirsling asserted this same argument as an error of law under rule 59(a)(7).
¶18 The court rejected Kirsling’s arguments. It explained that Utah Code section 78B-12-203(7) dictates the circumstances under which the trial court may impute income and gives discretion to the court to impute under those certain circumstances. The court then explained that it “did not impute income to [Pulham]” and that the application of this statute was “not the basis for a complaint of ‘insufficient evidence’” under rule 59(a)(6). Similarly, the court concluded that, in relation to rule 59(a)(7), it had not committed an error of law, because it had “exercised its discretion in determining not to impute income to [Pulham], something the statute authorizes it to do.”
¶19 Concerning custody, Kirsling contended that, under rule 59(a)(7), the trial court erred when it did not follow the recommendations of the custody evaluator. In particular, he stated that the court failed to provide “a detailed and clear finding” explaining why it did not adopt the custody evaluator’s recommendation. The court rejected this argument as well, maintaining that it had “articulated the reasons for its decision regarding custody.”
¶20 The trial court denied the motion for a new trial on June 17, 2015. Kirsling filed a timely notice of appeal, giving rise to the First Appeal. In his notice of appeal, Kirsling stated that he thereby appealed “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and that the appeal was “taken from such parts of the judgment as follow”: Paragraph 3 regarding child support calculation; Paragraph 4 regarding child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt.
The Petition to Modify the Amended Decree
¶21 On the same day he filed the First Appeal, Kirsling petitioned the trial court for a modification of the Amended Decree. Specifically, Kirsling asserted that “[a] significant change of circumstances has occurred as a result of [his] recent relocation to Stansbury Park, Utah, which is located approximately 15 minutes of driving time from his home to the home of [Pulham].” Kirsling further asserted that at the time the trial court entered the Amended Decree he lived approximately forty-five minutes away from Pulham and that “[t]his distance affected the Court’s awarding of parent time for both the overnight schedules, school choices and the midweek parent time determinations.” Because the long “commute time no longer exist[ed],” Kirsling requested that the court change the schedule to “fifty-fifty,” essentially asking to have Child spend every other week with him.[5]
¶22 Pulham responded by filing a motion to dismiss the petition to modify. Although she did not dispute that Kirsling had relocated, she contended that Kirsling’s move from Taylorsville to Stansbury Park did “not represent a change of circumstances sufficient to modify the controlling order,” because it did not affect her “parenting ability” and the “functioning of the current custodial relationship.”
¶23 A court commissioner heard the matter and recommended that the trial court deny Pulham’s motion to dismiss. Pulham objected to that recommendation, and the trial court ultimately resolved the petition to modify on its merits. The court observed that it had “considered the distance the minor child would be subjected to traveling” when entering its custody and parent-time orders in the Amended Decree, but it expressed concern that Kirsling’s “stop” in Stansbury Park would be “brief,” in light of his “somewhat migratory history.” The court also expressed concern that, “given the timing of the move and the petition itself, [Kirsling] made this move solely to create a change in circumstances in an effort to succeed in modifying the decree.”
¶24 Although Kirsling’s relocation closer to Pulham “benefits
all parties, including the minor child,” the court concluded that the “move, in and of itself, is wholly insufficient to create a sufficient change of circumstances to warrant reconsideration” of the Amended Decree, and it denied Kirsling’s petition to modify. Kirsling filed another notice of appeal, which triggered the Second Appeal.
ANALYSIS
I. The First Appeal
¶25 Kirsling raises three issues in the First Appeal. First, he contends that the trial court erred in calculating “Pulham’s income at $30 per month for child support purposes.” Second, he contends that it erred in denying his motion for a new trial on his claim of newly discovered evidence related to child care expenses. Third, he contends that the trial court erred in deviating “from the recommendations of the court-appointed custody evaluator without making any specific findings on the record as to its deviation.” Before we reach the merits of these contentions, however, we must consider whether Kirsling’s notice of appeal vested this court with jurisdiction to consider and address these issues.
A. The Scope of This Court’s Jurisdiction
¶26 As a threshold matter, we first consider Pulham’s argument that this court lacks jurisdiction to review certain issues on appeal. Pulham argues that “Kirsling’s notice of appeal invokes this Court’s jurisdiction over only some of the issues he has argued in his brief.” According to Pulham, “Kirsling’s notice of appeal references only the decisions in the Amended Decree relating to child support, a monetary judgment, and the dismissal of contempt charges,” and “[b]ecause [his] notice of appeal does not reference the district court’s custody award or the . . . denial of [his] motion for a new trial, this Court lacks appellate jurisdiction over issues related to those decisions.” Kirsling counters that a notice of appeal’s “designation of the specific parts [of an order or judgment] does not waive the appeal of the whole order or judgment” and that therefore this court “has jurisdiction over all of the issues raised on appeal . . . , as well as the issues concerning the post-trial motion” for a new trial.
¶27 “Whether appellate jurisdiction exists is a question of law . . . .” Goggin v. Goggin, 2011 UT 76, ¶ 16, 267 P.3d 885 (quotation simplified). Likewise, we “determine whether a Notice of Appeal is adequate to grant this court jurisdiction as a matter of law.” State v. Valdovinos, 2003 UT App 432, ¶ 13, 82 P.3d 1167 (quotation simplified).
¶28 The Utah Supreme Court has “emphasized that the object of a notice of appeal is to advise the opposite party that an appeal has been taken from a specific judgment in a particular case . . . [because the opposing party] is entitled to know specifically which judgment is being appealed.” Jensen v. Intermountain Power Agency, 1999 UT 10, ¶ 7, 977 P.2d 474 (quotation simplified). Rule 3(d) of the Utah Rules of Appellate Procedure dictates the content of a notice of appeal: “The notice of appeal . . . shall designate the judgment or order, or part thereof, appealed from . . . .” Utah R. App. P. 3(d); see also U.P.C., Inc. v. R.O.A. Gen., Inc., 1999 UT App 303, ¶ 11, 990 P.2d 945. This requirement “is jurisdictional.” Jensen, 1999 UT 10, ¶ 7. As a result, an “order not identified in the notice of appeal falls beyond [this court’s] appellate jurisdiction.” In re adoption of B.B., 2017 UT 59, ¶ 106.
¶29 “[W]here the notice of appeal sufficiently identifies the final judgment at issue and the opposing party is not prejudiced, the notice of appeal is to be liberally construed.” Kilpatrick v. Bullough Abatement, Inc., 2008 UT 82, ¶ 14, 199 P.3d 957 (quotation simplified). Put another way, “[w]here the appealing party’s intent is clear and the appellee suffers no prejudice, the notice of appeal is sufficient.” Id. ¶ 15.
¶30 As noted above, rule 3(d) requires that the notice of appeal “designate the judgment or order, or part thereof, appealed from.” Utah R. App. P. 3(d) (emphasis added). If an appellant has adequately designated the judgment or order appealed from, we do not read the rule’s language as also requiring the appellant to designate the “part thereof.” See id. But where an appellant chooses to identify the specific parts of a judgment subject to the appeal and gives notice of its intent to appeal only those parts of a particular judgment, our jurisdiction is limited by that representation. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106. In other words, “our jurisdiction is limited by the wording of the notice.” Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 135 (2d Cir. 2016) (quotation simplified) (holding that the language of a notice of appeal limits an appellate court’s jurisdiction to those issues expressly identified in the notice);[6] see also Muller v. Holmes, 353 F. App’x 664, 666 (2d Cir. 2009) (same); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (“When an appeal is taken from a specified judgment only or from a part of a specified judgment, the court of appeals acquires thereby no jurisdiction to review other judgments or portions thereof not so specified or otherwise fairly to be inferred from the notice as intended to be presented for review on the appeal.” (emphasis added)).
¶31 Here, Kirsling’s notice of appeal for the First Appeal states that he appeals “the final Decree of Divorce . . . entered in this matter on June 17, 2015,” and specifies that the appeal “is taken from such parts of the judgment as follow”:
Paragraph 3 regarding child support calculation;
Paragraph 4 wherein Mr. Kirsling was ordered to pay . . . child support and ORS fees and . . . child care expenses; and
Paragraph 8 wherein all charges of Contempt are dismissed.
The Amended Decree was entered on November 4, 2014. The order denying Kirsling’s motion for a new trial was entered on June 17, 2015. When the notice of appeal is considered in context, its reference to “the final Decree of Divorce” manifests Kirsling’s intent to appeal from the Amended Decree, and its reference to an order “entered in this matter on June 17, 2015,” manifests his intent to appeal from the order denying his motion for a new trial. See Speros v. Fricke, 2004 UT 69, ¶ 15, 98 P.3d 28 (interpreting a notice of appeal as an appeal from a January 15 order despite its reference to a nonexistent January 11 order because the appellant’s intent to appeal the former order was evident from the context). We thus conclude that Kirsling’s notice of appeal sufficiently designates the Amended Decree and the order denying the motion for a new trial as “the judgment[s] or order[s] . . . appealed from.” Utah R. App. P. 3(d).
¶32 But the notice of appeal does more; it also designates the “part[s] thereof” to be appealed. See id. It does so by stating that the appeal “is taken from such parts of the judgment as follow”: Paragraph 3 regarding child support; Paragraph 4 regarding past-due child support, ORS fees, and child care expenses; and Paragraph 8 regarding contempt. Because the Amended Decree has paragraph numbers and subject matters that correspond to those mentioned in the notice of appeal, we read the notice of appeal’s references to specific paragraphs as referring to Paragraphs 3, 4, and 8 of the Amended Decree. We thus construe the notice of appeal as manifesting Kirsling’s intent to contest on appeal only the issues of child support, past-due child support, ORS fees, child care expenses, and contempt. In contrast, the notice of appeal does not convey Kirsling’s intent to appeal issues related to the custody evaluation or the parenting plan— issues that were resolved in other paragraphs of the Amended Decree that are not cited in the notice of appeal. By expressly identifying the parts of the trial court’s ruling from which the appeal was taken, Kirsling manifested an intent not to appeal the other parts of the trial court’s Amended Decree and its related order denying his post-trial motion.[7]
¶33 In sum, because Kirsling’s notice of appeal identifies the specific parts of the trial court’s Amended Decree that he contests on appeal, our jurisdiction is limited to those particular parts. To be precise, this court has jurisdiction to review issues related to “the child support calculation”; the order directing Kirsling to pay ORS fees, past-due child support, and child care expenses; and the dismissal of the contempt charges.[8] The issues in his opening brief that are not identified in his notice of appeal—relating to the custody evaluation and the parenting plan—are outside this court’s jurisdiction. Cf. In re adoption of B.B., 2017 UT 59, ¶ 106 (determining that the supreme court had no jurisdiction to review a consent order, where that order was not mentioned in the notice of appeal and where that order was a distinct final judgment from another final judgment that was properly identified in the notice of appeal). Having identified those issues that are properly before this court in the First Appeal, we now address their merits.
B. Calculation of Income for Child Support Purposes
¶34 Kirsling contends that the trial court erroneously calculated Pulham’s monthly income for child support purposes as $30, asserting that “[e]ither the $30 per month finding regarding Pulham’s income was supported by insufficient evidence, or the trial court erroneously imputed income to her absent proper procedure.” In his view, Pulham’s income should have been imputed at a much higher amount. He thus asserts that the trial court’s error resulted in “an excessive award of child support to Pulham” and asks us to reverse and remand for the trial court to “determine the income based on [Pulham’s] historical income.”
¶35 Because trial courts have broad discretion to award child support, we will not disturb such a decision “absent an abuse of discretion.” Roberts v. Roberts, 2014 UT App 211, ¶ 7, 335 P.3d 378. “That means that as long as the court exercised its discretion within the bounds and under the standards we have set and has supported its decision with adequate findings and conclusions, we will not substitute our judgment for the trial court’s.” Id. (quotation simplified). Likewise, we review the trial court’s denial of Kirsling’s motion for a new trial for abuse of discretion. See Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341. We will set aside the trial court’s factual findings only if they are clearly erroneous. Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733 (“A trial court’s factual determinations are clearly erroneous only if they are in conflict with the clear weight of the evidence, or if this court has a definite and firm conviction that a mistake has been made.” (quotation simplified)).
¶36 We begin with Kirsling’s contention that the trial court’s finding regarding Pulham’s income is clearly erroneous because it lacks evidentiary support. On this point, we agree that no evidence adduced at trial supported the conclusion that, at the time of trial, Pulham had a monthly income of $30. It was undisputed that Pulham was unemployed and cared for her young children full-time. The trial court, however, did not purport to base its determination of income on the testimony or other evidence at trial. Rather, the court twice stated that its income determination was based on the parties’ “stipulated monthly gross incomes.”
¶37 Kirsling does not acknowledge the trial court’s explanation that its income determination was not based on evidence but on a stipulation by the parties. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (requiring an appellant to address the basis for the trial court’s ruling). Nevertheless, we acknowledge that the referenced stipulation does not appear to be in the record on appeal. And, when asked in oral argument to explain the origin of the $30 figure, counsel for Pulham admitted that he did not know.
¶38 But even assuming the court erred in determining that the parties stipulated to Pulham’s monthly income in the amount of $30, we conclude that the error would not warrant reversal. “[W]e will not reverse a judgment merely because there may have been [an] error; reversal occurs only if the error is such that there is a reasonable likelihood that, in its absence, there would have been a result more favorable to the complaining party.” Portfolio Recovery Assocs., LLC v. Migliore, 2013 UT App 255, ¶ 15, 314 P.3d 1069 (quotation simplified); see also Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”). As noted above, the undisputed evidence at trial showed that Pulham was unemployed and had no income. Thus, if the court erred in attributing some income to her based on a stipulation, that error arguably favored Kirsling. At the least, Kirsling has not demonstrated that if Pulham’s income was decreased from $30 to $0 that his child support obligation would be reduced. As a result, we will not reverse the trial court on this basis.
¶39 We further conclude that Kirsling has not established that the alleged error of which he complains entitles him to his requested relief—a new trial with the opportunity to request the imputation of additional income to Pulham based on evidence not presented at trial. Kirsling did not move for a new trial on this issue under rule 59(a)(4) of the Utah Rules of Civil Procedure based on a claim of newly discovered evidence, and he has not shown that the court committed an error of law by not imputing income to Pulham based on her anticipated earnings or the federal minimum wage such that a new trial would be warranted under rule 59(a)(7). See Utah Code Ann. § 78B-12-203(7) (LexisNexis 2012) (allowing under certain circumstances for the imputation of income for child support purposes based on employment potential and anticipated earnings or the federal minimum wage for a forty-hour work week).[9] See generally Utah R. Civ. P. 59(a)(4), (a)(7) (2014) (permitting the court to grant a new trial on the grounds of newly discovered evidence or errors in law).
¶40 Income in a contested case may be imputed under Utah Code section 78B-12-203 only if the court “enters findings of fact as to the evidentiary basis for the imputation.” Utah Code Ann. § 78B-12-203(7)(a). Where income is imputed, it “shall be based upon [the parent’s] employment potential and probable earnings,” id. § 78B-12-203(7)(b), or, where a parent “has no recent work history” or an unknown occupation, “income shall be imputed at least at the federal minimum wage for a 40-hour work week,” id. § 78B-12-203(7)(c). Moreover, income “may not be imputed” if certain conditions exist, including where “the reasonable costs of child care for the parents’ minor children approach or equal the amount of income the custodial parent can earn.” Id. § 78B-12-203(d)(i).
¶41 The subject of imputation of income was not raised until Kirsling’s post-trial rule 59 motion. And, as Kirsling concedes on appeal, none of the factors relevant to imputing income to Pulham based on her employment potential and probable earnings were discussed, and information about those factors was not placed on the record. In fact, the only evidence at trial arguably relevant to the imputation of income was that Pulham worked for a time but that she “barely made anything” after paying for child care. Given that the record contains no evidence regarding Pulham’s employment potential and probable earnings, and given that her undisputed testimony was that the cost of child care approached the amount of income she previously had earned, see id., we cannot conclude that the trial court committed legal error in not imputing income to Pulham under section 78B-12-203(7)(b).
¶42 Similarly, Kirsling’s argument that the trial court should have imputed income to Pulham under Utah Code section 78B12-203(7)(c) at the federal minimum wage also fails. Not only did Kirsling not ask for imputation under this provision at trial or in his post-trial motion, but he now admits that “Pulham does have recent work history.” Thus, he implicitly concedes that imputation under that section would not have been appropriate. See id. § 78B-12-203(7)(c) (“If a parent has no recent work history or a parent’s occupation is unknown, income shall be imputed at least at the federal minimum wage for a 40-hour work week.” (emphasis added)). We therefore affirm the trial court’s child support order and its denial of Kirsling’s related rule 59 motion.[10]
C. Newly Discovered Evidence Related to Child Care Expenses
¶43 Kirsling next contends that the trial court erred in denying his motion for a new trial when it refused to consider newly discovered evidence relating to past-due child care expenses. According to Kirsling, he “had been misinformed at the time of trial that he could not obtain evidence to show that Pulham had received and cashed” a money order that he had given to her counsel, but he was able to obtain a copy of that cashed money order after trial. Kirsling asserts that he undertook due diligence but that the misinformation given to him was “outside of his control.” He further asserts that the copy of the cashed money order would “affect[] the financial settlement ordered by the court” and that therefore the court should have granted him a new trial. [11]
¶44 Rule 59(a)(4) provides that a new trial may be granted if a party shows the existence of material and “[n]ewly discovered evidence, . . . which he could not, with reasonable diligence, have discovered and produced at the trial.” Utah R. Civ. P. 59(a)(4) (2014). Such a motion “shall be supported by affidavit.” Id. R. 59(c). “In deciding whether to grant a new trial, the trial court has some discretion, and we reverse only for abuse of that discretion.” Wall v. Wall, 2007 UT App 61, ¶ 8, 157 P.3d 341 (quotation simplified).
¶45 The trial court denied Kirsling’s rule 59 motion based on his claim of newly discovered evidence. The court reasoned that he had not established “whether or why he was unable to obtain this evidence prior to trial” and had not shown that “the introduction of the evidence would have resulted in a different trial outcome.”
¶46 Kirsling’s argument fails because he has not addressed the trial court’s rationale for denying his motion. See Duchesne Land, LC v. Division of Consumer Prot., 2011 UT App 153, ¶ 8, 257 P.3d 441 (explaining that an appellant must address and show error in the basis for the trial court’s ruling). Moreover, though Kirsling recites the factual basis for his claim that evidence was newly discovered, he cites no evidentiary basis for his assertions that he could not obtain the relevant evidence prior to trial. Aside from his rule 59 motion and memorandum, the only material that Kirsling presented to the trial court in support of his newly discovered evidence claim was a document signed by his attorney purporting to be Kirsling’s affidavit. Rule 59(c) requires that a newly discovered evidence claim be “supported by affidavit,” Utah R. Civ. P. 59(c) (2014), but, as the trial court correctly noted, the purported affidavit is “more accurately characterized as an argument by [Kirsling’s] counsel.” Given Kirsling’s failure to provide the trial court with evidentiary support, the court did not exceed its discretion in denying Kirsling’s motion.
II. The Second Appeal
¶47 The Second Appeal centers on the trial court’s denial of Kirsling’s petition to modify the Amended Decree. We first address Kirsling’s sole argument on appeal regarding that decision, and then address the parties’ requests for an award of attorney fees incurred in the Second Appeal.
A. The Petition to Modify
¶48 Kirsling argues that the trial court “applied an incorrect heightened standard to arbitrarily foreclose modification” on the basis that “a substantial change of material circumstances had not occurred.” According to Kirsling, he was asking for a modification of parent-time, and the trial court therefore should have applied “a less strict” standard.
¶49 “We generally review the determination to modify a divorce decree for an abuse of discretion. However, to the extent that determination is based on a conclusion of law, we review it for correctness.” Snyder v. Snyder, 2015 UT App 245, ¶ 9, 360 P.3d 796 (quotation simplified).
¶50 The Utah Supreme Court has recognized that the threshold “change in circumstances required to justify a modification of a divorce decree varies with the type of modification sought.” Haslam v. Haslam, 657 P.2d 757, 758 (Utah 1982). As a general rule, modifying a custody order requires a showing of a substantial and material change in circumstances. Doyle v. Doyle, 2011 UT 42, ¶¶ 24–25, 258 P.3d 553. In contrast, altering parent-time arrangements requires a showing of changed circumstances, but that “showing does not rise to the same level as the substantial and material showing required when a district court alters custody.” Jones v. Jones, 2016 UT App 94, ¶ 10, 374 P.3d 45 (citing Becker v. Becker, 694 P.2d 608, 609, 611 (Utah 1984); Haslam, 657 P.2d at 758); accord Blocker v. Blocker, 2017 UT App 10, ¶¶ 12–14, 391 P.3d 1051.
¶51 Contrary to Kirsling’s contention, the trial court did not apply a “substantial change of material circumstances” standard. The court ultimately stated that Kirsling’s move was “insufficient to create a sufficient change in circumstances to warrant reconsideration of the Court’s Order.”[12] (Emphasis added.) And while the court described the standard as “high,”nowhere in its order did it identify the “substantial change of material circumstances” standard as the one that must be met.
¶52 Even more importantly, however, the trial court did not arbitrarily refuse to hear Kirsling’s petition based on an application of a standard. Rather, the court considered the merits of Kirsling’s petition. The court accepted as true that Kirsling moved to Stansbury Park after the entry of the Amended Decree, but it rejected his assertion that the court’s custody and parent-time orders were driven primarily by the fact that Kirsling lived in Taylorsville at the time of trial. The court expressed concern that Kirsling’s “stop in [Stansbury Park would] be . . . brief,” given Kirsling’s “migratory history.” The court also expressed concern that the move was motivated to create a change of circumstances to justify a modification of the Amended Decree. Thus, rather than reject Kirsling’s petition on the basis that a move by one parent fails to constitute a “substantial change in material circumstances,” the court considered its merits and determined why Kirsling’s move, under the relevant circumstances, did not warrant modification of the court’s order.
¶53 But even assuming the court’s order could be construed as having applied a “substantial change in material circumstances” standard, Kirsling’s argument would fail for lack of preservation. “To preserve an argument for appellate review, the appellant must first present the argument to the district court in such a way that the court has an opportunity to rule on it.” Gowe v. Intermountain Healthcare, Inc., 2015 UT App 105, ¶ 7, 356 P.3d 683 (quotation simplified). “We generally do not address unpreserved arguments raised for the first time on appeal.” Id.
¶54 Kirsling never alerted the court to his argument that his petition requested a type of modification that should be based on something less than a substantial and material change of circumstances. Instead, he practically invited the court to apply the heightened standard. Kirsling premised his petition on the occurrence of “[a] significant change in circumstances,” and in his briefing he referred to a move to a new community as an example of a “material and substantial change[]” justifying the modification of a custody award. These submissions— particularly the suggested standard—arguably invited the court to apply the standard about which Kirsling now complains. See Kerr v. City of Salt Lake, 2013 UT 75, ¶ 44, 322 P.3d 669 (stating that under the doctrine of invited error, “a litigant may not induce the trial court to make a ruling and then argue on appeal that the ruling was in error”). In any event, Kirsling did not preserve his argument that the court erred in applying the substantial change of circumstances standard rather than “a less strict” standard “for a change in parent time.” See Baumann v. Kroger Co., 2017 UT 80, ¶¶ 17–18 (deeming an argument unpreserved where the appellant did not argue for the more forgiving standard she advocated for on appeal and where she arguably invited the district court to apply the less forgiving standard). Thus, we will not now reverse the trial court’s denial of his petition to modify on that basis. See Gowe, 2015 UT App 105, ¶ 9.
B. Attorney Fees on Appeal
¶55 Both parties request an attorney fees award pursuant to rule 33 of the Utah Rules of Appellate Procedure. Rule 33 allows this court, if it determines that an appeal is “either frivolous or for delay,” to “award just damages, which may include . . . costs . . . and/or reasonable attorney fees, to the prevailing party.” Utah R. App. P. 33(a). “[P]arties seeking attorney fees under rule 33 face a high bar,” and the Utah Supreme Court has directed that such sanctions are warranted only in “egregious cases.” Porenta v. Porenta, 2017 UT 78, ¶ 51 (quotation simplified). We conclude that this case does not present an egregious case and therefore deny the parties’ requests for attorney fees.
CONCLUSION
¶56 In the First Appeal, we conclude that only two of the three issues that Kirsling argues on appeal were identified in his notice of appeal and are properly before this court. On the merits of those two issues, we conclude that Kirsling’s challenge to the trial court’s calculation of income fails and he has not shown that the trial court erred in denying his motion for a new trial based on his claim of newly discovered evidence. As for the Second Appeal, we conclude that the trial court did not err in denying Kirsling’s petition to modify the Amended Decree. Accordingly, we affirm the trial court’s decisions in both appeals.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] We have consolidated Case No. 20150577-CA and Case No. 20160236-CA for purposes of this opinion.
[2] This child support worksheet is not part of the record on appeal.
[3] Rule 59(a) provided, in relevant part, that “a new trial may be granted to . . . any . . . part[y] and on all or part of the issues, for any of the following causes[:] . . . (a)(4) [n]ewly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; . . . (a)(6) [i]nsufficiency of the evidence to justify the verdict or other decision”; or “(a)(7) [e]rror in law.” Utah R. Civ. P. 59(a) (2014). Because rule 59 has been amended, we cite the version in effect at the time Kirsling filed his motion.
[4] Kirsling also cited rule 59(a)(3), making a related argument that he was surprised by Pulham’s assertion at trial that she had not received the settlement payment and that it was “not prudent to expect [him to] guard against” that assertion. While Kirsling briefly refers to rule 59(a)(3) in his statement of the issues on appeal, he makes no argument based on surprise and instead focuses this portion of his appeal on rule 59(a)(4) and his contention of newly discovered evidence. Accordingly, we do not address whether the trial court abused its discretion in not granting a new trial under rule 59(a)(3). See Wintle-Butts v. Career Service Review Office, 2013 UT App 187, ¶ 20, 307 P.3d 665 (refusing to consider an undeveloped and inadequately briefed issue).
[5] The parties seem to agree that Kirsling was trying to move from 40% overnights to 50% overnights.
[6] Substantively similar to Utah Rule of Appellate Procedure 3(d), the federal counterpart requires that a party designate in its notice of appeal “the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B); see also Drew v. Lee, 2011 UT 15, ¶ 16 & n.22, 250 P.3d 48 (indicating that where federal court procedural rules are substantively similar to Utah’s rules, we may look to interpretations of the federal rules for guidance and as persuasive authority).
[7] The same intent is also manifest in Kirsling’s petition to modify the Amended Decree, which he filed contemporaneously with his notice of appeal. In his motion, he advised the trial court that “[a] Notice of Appeal on three sections of the Decree of Divorce is being filed, but none of these sections pertain to or affect this Petition to Modify regarding parent time.” In his supporting affidavit, Kirsling further “emphasize[d] that none of the items that [he] . . . [n]oticed [for appeal] pertain to the issues” raised in his petition to modify the trial court’s determinations regarding parent-time.
[8] Despite the fact that the issues related to the ORS fees and the contempt charges are within our jurisdiction, Kirsling has not briefed on appeal any challenge to the trial court’s decisions on those issues. Consequently, we do not consider them further.
[9] This statutory provision was recently amended. We cite the version in effect when the trial court determined Kirsling’s child support obligation.
[10] In his motion for a new trial, Kirsling also argued that the child support order should have given him credit for other children in his home. The trial court rejected that argument. On appeal, Kirsling refers to these facts, but he does not present any related analysis supported by citations to the record and legal authority. See Utah R. App. P. 24(a)(9) (2016). He therefore has not carried his burden to show error in the court’s decision on this point.
[11] Kirsling purports to challenge the trial court’s calculation of the amounts he owed Pulham for past-due child support and child care expenses, asserting that the court erred “in determining the financial award” and “in denying the financial settlement or offsetting amounts owed to Pulham.” But because his related briefing focuses on the denial of his rule 59 motion and does not attempt to show other error in the Amended Decree’s calculation of the amounts Kirsling owed to Pulham, we construe his argument as pertaining solely to the court’s denial of the rule 59 motion.
[12] Kirsling points to this statement as evidence that the court applied the “substantial change in material circumstances” standard to foreclose modification. But this statement cannot be read in isolation. As we explain below, because the court actually reached the merits of Kirsling’s petition, we cannot agree that the court refused to reconsider its prior order based on an unmet threshold.
DEIDRE SUE JANSON,
Appellant,
v.
JEFFREY ALAN JANSON,
Appellee.
Opinion No. 20170541-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 164906327
Jamie Carpenter, Attorney for Appellant
Kara L. Barton and Ashley Wood, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, in which JUDGES GREGORY K. ORME and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Deidre Sue Janson appeals the district court’s order denying her motion to set aside a written stipulation (the Stipulation) entered in her divorce action against Jeffrey Alan Janson. We affirm.
BACKGROUND
¶2 The parties entered into the Stipulation following mediation on November 14, 2016, to resolve the issues in their divorce. As part of the Stipulation, Deidre[1] agreed to pay Jeffrey alimony of $2,500 per month for eighteen months and $1,500 per month for an additional eighteen months.
¶3 The Stipulation awarded the marital home to Jeffrey.
Deidre was awarded half of the equity in the home, less $45,000 that constituted Jeffrey’s inherited funds. The Stipulation also divided the equity in the parties’ vehicles, requiring Deidre to pay Jeffrey $13,178 from her share of the parties’ bank accounts to equalize the vehicle equity disparity.
¶4 The parties had a number of retirement funds and accounts. Regarding the retirement, the parties agreed as follows:
[Deidre] has the following retirement accounts: Utah Retirement in the amount of approximately $72,440; General Electric in the approximate amount of $100,435; Roth IRA in the approximate amount of $18,252; FDIC in the approximate amount of $16,719 and $17,431; and Utah Pension in the amount of $15,281.
[Jeffrey] has the following retirement accounts: Fidelity in the approximate amount of $22,012; Bernstein in the approximate amount of $18,305.
The above retirement accounts will be divided equally between the parties. In addition [Deidre] has a premarital IRA in the approximate amount of $17,682 which is her separate property.
[Jeffrey’s] Alliant Technical Systems Pension plan which will be divided pursuant to the Woodward formula.
The parties will share equally the cost of any qualified domestic relation order.
¶5 On January 12, 2017, Deidre moved to set aside the Stipulation on the ground that there was not a meeting of the minds regarding various provisions in the agreement. She asserted that she “did not receive [Jeffrey’s] financial disclosures until the morning of mediation and was not able to consult with her attorney prior to mediation.” She asserted that because her Utah pension was listed with its approximate value alongside the other retirement accounts, her understanding was that Jeffrey was to receive only half of the listed $15,281 partial lump sum value of that pension rather than half of the entire monthly payment amount as determined by a qualified domestic relations order (QDRO). According to Deidre, the total value of Jeffrey’s half of the pension if the monthly payment option were utilized would amount to approximately $80,000. Deidre claimed that had she understood that Jeffrey would be entitled to half of the entire Utah pension, she would not have agreed to provisions granting Jeffrey premarital equity in the home. She pointed to the lack of specific dates for the accounts to be divided and the impracticality of preparing a QDRO for every retirement account as support for her assertion that the Stipulation should be interpreted as granting Jeffrey only half of the stated partial lump sum value of her Utah pension account.[2]
¶6 Jeffrey opposed the motion to set aside the Stipulation, pointing out that his financial declaration was provided to Deidre well in advance of mediation and that she was represented by counsel at the mediation. He also explained the discrepancy between how the Stipulation described the division of his pension account and how it described the division of Deidre’s—his account had been partially accrued prior to the marriage, whereas Deidre’s had been accrued entirely during the period of the marriage. He asserted that Deidre was aware that an equal division of her pension could result in him receiving half of the monthly payments rather than half of the partial lump sum payout value because her own financial declaration included a summary of the various payout options. Jeffrey also asserted that only three QDROs, at maximum, were necessary to divide the retirement accounts.
¶7 In responding to Jeffrey’s memorandum in opposition to her motion, Deidre raised additional issues impacting the Stipulation’s alimony award—she indicated that after filing the motion to set aside, she was involuntarily terminated from her job without notice, that the loss of her job precluded her from continuing to pay alimony, and that Jeffrey had become eligible to draw on his social security and retirement accounts to support himself. She asserted that these changes in circumstances justified setting aside the Stipulation.
¶8 Following a hearing, the district court denied Deidre’s motion. The court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit. The court determined that the language in the Stipulation dividing the pension equally was clear as to how the retirement accounts would be treated and contained sufficient detail to enforce the Stipulation. The court stated that it was reasonable to anticipate that additional details would be filled in when the QDROs were prepared. The court also determined that issues related to Deidre’s alleged change in circumstances should be handled separately as a petition to modify.
¶9 Deidre now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Deidre asserts that the Stipulation is unenforceable because there was no meeting of the minds regarding various aspects of the Stipulation.[3]
Whether the parties had a meeting of the minds sufficient to create a binding contract is an issue of fact, which we review for clear error, reversing only where the finding is against the clear weight of the evidence, or if we otherwise reach a firm conviction that a mistake has been made.
LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 13, 221 P.3d 867 (quotation simplified).
¶11 Deidre also asserts that the district court erred in declining to consider her substantial change in circumstances argument as a basis for setting aside the Stipulation and instead determining that a petition to modify was the necessary route for her to pursue this argument. Whether a district court erred in accepting and enforcing a proffered stipulation is reviewed for an abuse of discretion. See In re N.M., 2018 UT App 141, ¶ 17, 427 P.3d 1239.
ANALYSIS
The District Court Did Not Clearly Err in Rejecting Deidre’s Assertion That There Was No Meeting of the Minds.
¶12 “It is a basic principle of contract law there can be no contract without a meeting of the minds.” Granger v. Granger, 2016 UT App 117, ¶ 14, 374 P.3d 1043 (quotation simplified). “A binding contract exists where it can be shown that the parties had a meeting of the minds as to the integral features of the agreement and that the terms are sufficiently definite as to be capable of being enforced.” LD III, LLC v. BBRD, LC, 2009 UT App 301, ¶ 14, 221 P.3d 867 (quotation simplified). “Whether there is a meeting of the minds depends on whether the parties actually intended to contract, and the question of intent generally is one to be determined by the trier of fact.” Terry v. Bacon, 2011 UT App 432, ¶ 21, 269 P.3d 188 (quotation simplified).
¶13 “[I]n divorce cases, the ability of parties to contract is constrained to some extent by the equitable nature of the proceedings . . . .” Granger, 2016 UT App 117, ¶ 15. “Because retirement funds are prospectively marital property if acquired or contributed to during the marriage, the distribution of such marital funds must fit within the overarching principle of equity unless the parties have freely and knowingly agreed to a different result that has been appropriately sanctioned by the court.” Id. ¶ 16. Nevertheless, “it is not the court’s prerogative to step in and renegotiate the contract of the parties. Instead, courts should recognize and honor the right of persons to contract freely and to make real and genuine mistakes when the dealings are at arms’ length.” Id. ¶ 14 (quotation simplified).
A. Retirement Funds
1. The Court Did Not Err in Accepting Jeffrey’s Interpretation of the Stipulation.
¶14 At the evidentiary hearing, the district court considered both parties’ testimonies regarding their understanding of the Stipulation and their intent regarding the division of their retirement funds. Having considered this evidence, the district court found that both parties understood that Deidre’s Utah pension had the potential for an annuitized benefit and that the Stipulation was clear that the listed retirement accounts were to be divided equally between the parties. Deidre asserts that this conclusion was clearly erroneous because it is inconsistent with the principle that retirement funds that can be “presently valued” should be equally divided.
¶15 As a general matter, equitable division of a defined benefit plan is accomplished by the Woodward formula[4] and equitable division of a defined contribution plan is accomplished by dividing the value contributed during the marriage. Granger Granger, 2016 UT App 117, ¶ 23, 374 P.3d 1043. While Deidre’s pension fund had a “partial lump sum” payout option—which was listed as the “approximate value”[5] in the Stipulation—it also had a monthly payment option. Because pension funds are presumptively divided according to the Woodward formula, an interpretation of the Stipulation that requires dividing the entire fund rather than only the partial lump sum amount is more consistent with equity. It is also the most logical approach in light of Deidre’s own financial declaration, which acknowledged that her Utah pension had a monthly payment option.
¶16 Deidre also asserts that Jeffrey himself testified that he believed the “approximate” amount listed for Deidre’s pension, rather than the entire pension, would be divided equally. But the record does not support Deidre’s characterization of Jeffrey’s testimony. At the hearing, Jeffrey was asked, “So it was your understanding that [the] specific value you listed would be, at least with 401-Ks or whatnot, would be divided. You would get half of that value?” (Emphasis added.) Jeffrey responded, “It would be half the value as identified by the amounts listed in the stipulation.” Jeffrey was asked specifically about the division of the 401(k)s, not the pension. Thus, his answer to this question cannot be construed as a statement that he expected and agreed that the pension would be divided only according to the amount listed in the Stipulation.
¶17 Indeed, Jeffrey testified that based on the document Deidre produced in her financial declaration outlining the various options for the distribution of the Utah pension, he understood that Deidre’s pension could be taken either “as a partial lump sum” or as “monthly payments” and that he “would have a choice” either to take half of the monthly payments or to add half of the partial lump sum to his share of the distributions of the other IRA and 401(k) accounts. Deidre also testified that she knew that a monthly payment could be an option for payout of her pension. Thus, the court’s interpretation of the Stipulation is supported by the evidence and is not clearly erroneous.
2. The Court Did Not Err in Enforcing the Stipulation.
¶18 Deidre also asserts that the Stipulation should not be enforced because it was not equitable. She argues that the district court should have considered the Stipulation as a whole and recognized that she had given up other valuable assets in exchange for treating the pension as a lump sum rather than as a monthly benefit calculated by utilizing the Woodward formula. However, there is nothing on the face of the Stipulation to indicate that such an exchange was made. The Stipulation states that Jeffrey was granted an extra $45,000 of equity in the home because he had contributed inherited funds to the home, not in exchange for the retirement.
¶19 Even if the court had accepted Deidre’s argument, it is by no means clear that she gave up anything in exchange for the pension, let alone something of comparable value such that the court should have recognized the retirement division as inequitable. Presumably, Jeffrey would have contested Deidre’s assertion that the inheritance funds were comingled, and she has not established that she was equitably entitled to share in the portion of the equity gained by investing the inheritance funds. Further, her half of that portion of the equity was significantly smaller than the amount of the pension Jeffrey would be giving up by accepting half of the partial lump sum value rather than half of the monthly payments. Additionally, Deidre herself asserted only that her belief regarding the pension made her “a little more flexible” on the issue of the allegedly comingled inheritance, not that she bargained for an exchange of one for the other.
¶20 To require the district court to examine and evaluate the Stipulation to the degree recommended by Deidre would be to undermine the parties’ right to contract freely. While courts should ensure that the provisions of a divorce stipulation comply with “the overarching principle of equity,” Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043, they are also to “respect[] and give[] considerable weight” to the parties’ agreement, Maxwell v. Maxwell, 796 P.2d 403, 406 (Utah Ct. App. 1990). Thus, weighing every provision of a stipulation against every other to ensure that the parties have reached a perfectly fair agreement is beyond the scope of the court’s mandate.
¶21 Indeed, the court’s equity analysis generally focuses “not on the contract’s subject matter, but rather on whether the contract was fairly negotiated and does not result in an outcome so severely one sided that it prevents the district court from fulfilling its equitable obligations.” Ashby v. Ashby, 2010 UT 7, ¶ 21, 227 P.3d 246. We see nothing in the record to suggest that the district court was presented with such a situation. Both parties were represented by counsel, and the terms of the Stipulation were not so one-sided as to give the court reason to believe that the parties’ agreement had violated the principles of equity. Thus, the court did not exceed its discretion in determining that the Stipulation’s division of the retirement funds was enforceable.
B. Deidre’s Arguments Regarding Alimony and Vehicles Were Not Preserved for Appeal.
¶22 On appeal, Deidre renews the arguments made in her motion to set aside that there was no meeting of the minds with respect to the Stipulation’s provisions regarding alimony and the division of equity in the vehicles. However, the district court made no ruling on these issues.[6]
¶23 “[I]n order to preserve an issue for appeal the issue must be presented to the trial court in such a way that the trial court has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. “[O]nce trial counsel has raised an issue before the trial court, and the trial court has considered the issue, the issue is preserved for appeal.” Id. (emphasis added).
¶24 We agree with Jeffrey that Deidre’s reference to the alimony and vehicle issues in her motion to set aside was not sufficient to preserve them for appeal when she did not present evidence or argue these issues to the district court at the evidentiary hearing and the district court did not rule on them. “[T]he mere mention of an issue in the pleadings, when no supporting evidence or relevant legal authority is introduced at trial in support of the claim, is insufficient to raise an issue at trial and thus insufficient to preserve the issue for appeal.” LeBaron & Assocs., Inc. v. Rebel Enters., Inc., 823 P.2d 479, 483 (Utah Ct. App. 1991). Further, a party may waive an issue by relinquishing or abandoning it before the district court, either expressly or impliedly. State v. Johnson, 2017 UT 76, ¶ 16 n.4, 416 P.3d 443.
¶25 “The fundamental purpose of the preservation rule is to ensure that the district court had a chance to rule on an issue before an appellate court will address it.” Helf v. Chevron U.S.A. Inc., 2015 UT 81, ¶ 42, 361 P.3d 63. Because the district court did not rule on the alimony and vehicle issues, and Deidre made no attempt to remedy that omission before raising the issues on appeal, her arguments regarding these issues are unpreserved, and we will not consider them for the first time on appeal. See Vandermeide v. Young, 2013 UT App 31, ¶¶ 8–9, 296 P.3d 787 (holding that a challenge to a district court’s failure to rule on an issue raised in the pleadings was not preserved for appeal, because the appellants did not object to the court’s findings or file a post-judgment motion requesting additional findings).
II. Deidre Will Have the Opportunity to Pursue Her Change of Circumstances Argument in the Context of a Petition to Modify.
¶26 Deidre also argues that the district court erred in declining to consider the change in her employment status as a basis for setting aside the Stipulation before a final order was entered. Although Deidre filed her motion to set aside prior to the entry of the final Decree of Divorce (the Decree), the court declined to consider whether the Stipulation should be modified based on a change of circumstances, stating, “[O]ur procedural rules contemplate that a petition to modify has to be made when the parties reached this state of the proceeding. The Parties reached a resolution in this case and new situations are handled differently.”
¶27 The district court has the discretion to reconsider a prior ruling any time before a final judgment is entered. See Utah R. Civ. P. 54(b); see also Hafen v. Scholes, 2014 UT App 208, ¶ 3, 335 P.3d 396 (per curiam); Durah v. Baksh, 2011 UT App 159, ¶ 5, 257 P.3d 458 (per curiam). However, to seek a modification of a divorce decree, a movant must show “a substantial change of circumstances occurring since the entry of the decree and not contemplated in the decree itself.” Gardner v. Gardner, 2012 UT App 374, ¶ 38, 294 P.3d 600 (emphasis added) (quotation simplified).
¶28 The change in Deidre’s employment status occurred after the Stipulation was signed but before the Decree was entered. Thus, Deidre asserts that the district court’s refusal to reconsider the alimony portion of the Stipulation as part of her motion to set aside was an abuse of discretion because it put her in a catch-22—the court would not let her seek a modification prior to the entry of the Decree, but she would be precluded from seeking one afterward because her alleged change in circumstances occurred before the entry of the Decree.
¶29 We agree with Deidre that the district court, contrary to its own assertion, had the discretion to reconsider whether to accept the parties’ Stipulation as to alimony prior to the entry of the Decree, since the alleged change in circumstances occurred prior to a final judgment being entered. This issue was relevant to the court’s consideration of whether the Stipulation complied with the “overarching principle of equity.” See Granger v. Granger, 2016 UT App 117, ¶ 16, 374 P.3d 1043. The court may have determined that the Stipulation as to alimony was no longer equitable in light of the change in circumstances and that the parties would not have entered into the Stipulation as to alimony had they been aware that Deidre would lose her employment.
¶30 However, while considering Deidre’s alleged substantial change of circumstances at an earlier stage of the proceedings may have been desirable as a matter of judicial economy, Deidre has not been prejudiced by the district court’s refusal to do so. Deidre filed a Petition to Modify on January 9, 2018, which is currently pending in the district court. The district court gave Deidre leave to pursue her substantial change of circumstances argument subsequent to the entry of the Decree, and Jeffrey has conceded that she should be allowed to do so. These circumstances avoid the catch-22 scenario Deidre feared. Because Deidre has not actually been precluded from raising her substantial change of circumstances claim, any error on the part of the district court in declining to consider her motion to set aside the alimony portions of the Stipulation on that basis was harmless.
CONCLUSION
¶31 The district court’s interpretation of the Stipulation’s retirement provisions is supported by the evidence presented at the evidentiary hearing. Deidre’s arguments concerning other aspects of the Stipulation were not preserved, and we therefore do not consider them. Further, while the district court could have considered Deidre’s arguments concerning her alleged change in circumstances in the context of the motion to set the Stipulation aside, the court’s refusal to do so was not prejudicial. Deidre will be permitted to pursue her claim in the context of the petition to modify already filed with the district court. Accordingly, we affirm the district court’s denial of Deidre’s motion to set aside the Stipulation.
Utah Family Law, LC | divorceutah.com | 801-466-9277
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[1] Because the parties share the same last name, we refer to them by their first names to avoid confusion, meaning no disrespect by the apparent informality.
[2] Deidre also challenged other provisions of the Stipulation that she asserted were inartfully drafted. Specifically, she claimed that there was a mathematical error in the calculation of the vehicle equity and that a lack of language regarding the parties’ incomes and needs in the alimony provision had the potential to preclude a future modification. However, she did not present argument or evidence on these issues at the evidentiary hearing, and the district court ultimately made no ruling on them. See infra ¶¶ 22–25.
[3] Deidre also asserts that the district court erred in determining that the Stipulation was unambiguous. Although the court stated that it considered the Stipulation’s language to be “clear,” it did not make an explicit ruling regarding whether the Stipulation was ambiguous. In fact, the district court’s consideration of extrinsic evidence suggests that the court actually did consider the Stipulation to be ambiguous, since the purpose of considering extrinsic evidence is to clarify ambiguous terms in the contract. See Ward v. Intermountain Farmers Ass’n, 907 P.2d 264, 268 (Utah 1995) (explaining that if a court determines that a contract is ambiguous, the next step is to admit extrinsic evidence “to clarify the ambiguous terms”). We therefore review only the district court’s evaluation of the extrinsic evidence and its determination that Jeffrey’s interpretation of the Stipulation was more reasonable, that there was a meeting of the minds regarding how the retirement was to be divided, and that the
Stipulation was enforceable.
[4] The Woodward formula grants a spouse one-half of the “portion of the retirement benefits represented by the number of years of the marriage divided by the number of years of the [acquiring spouse’s] employment.” Woodward v. Woodward, 656 P.2d 431, 433–44 (Utah 1982).
[5] Incidentally, the fact that the parties listed only the “approximate” values of the various retirement funds also undermines Deidre’s assertion that the parties intended to effectuate the division based on the listed values rather than the actual values of the funds.
[6] Deidre asserts that the court’s ruling that “[i]n order to have a contract, the Court doesn’t need perfect clarity on every factual point” constituted a ruling on all the issues she raised. However, Deidre omits vital language from the court’s ruling. The court actually stated, “In order to have a contract, the Court doesn’t need perfect clarity on every factual point that might fill in a QDRO here.” (Emphasis added.) Thus, it is clear from the context that the court’s ruling contemplated only the issues Deidre raised with respect to the retirement, not the alimony and vehicle issues.
JANAE A. KIRKHAM,
Appellant,
v.
JAMIE WIDDISON, HRB TAX GROUP, GRACE HANSEN, BONNY WIDDISON, AND ALPINE GARDENS INC.,
Appellees.
Opinion No. 20170655-CA
Filed June 6, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 150902366
Janae A. Kirkham, Appellant Pro Se
Suzanne Marelius, Attorney for Appellees Jamie Widdison and Bonny Widdison
Sean N. Egan, Anthony J. Durone, and Timothy West, Attorneys for Appellees HRB Tax Group and Grace Hansen
Jonathan O. Hafen and Jeffery A. Balls, Attorneys for Appellee Alpine Gardens Inc.
JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGE DIANA HAGEN concurred. JUDGE MICHELE M.
CHRISTIANSEN FORSTER concurred, except that as to section VI, she concurred only in the result.
MORTENSEN, Judge:
¶1 Appellant Janae A. Kirkham appeals—for the fourth time[1]—issues arising from claims that she alleges occurred during the litigation of a petition to modify in a separate divorce proceeding. Kirkham argues that the trial court erred by granting a rule 12(b)(6) motion to dismiss four of her claims, granting a rule 12(c) judgment on the pleadings dismissing one of her claims, (3) dismissing her remaining claims on summary judgment, (4) granting a motion to disqualify her attorney, (5) granting a protective order under rule 37 of the Utah Rules of Civil Procedure, and (6) awarding attorney fees and costs pursuant to Utah Code section 78B-5-825. We affirm.
BACKGROUND
¶2 In 2011, Jamie Widdison sought a modification of his and Kirkham’s divorce decree, which would, among other things, allow him to retroactively claim a tax exemption for the parties’ minor child—whom Kirkham had previously claimed. During those proceedings, Kirkham produced copies of her tax returns for the years 2009, 2010, and 2011 (Tax Returns). According to Kirkham’s second amended complaint (Complaint), Widdison and his wife Bonnie Widdison (collectively, Widdisons) received the Tax Returns from their attorney and used Alpine Gardens Inc.’s fax machine to send those copies to HRB Tax Group and its employee, Grace Hansen (collectively, HRB). HRB used the Tax Returns to prepare pro forma returns (Pro Forma Returns)[2] demonstrating the potential impact to Kirkham’s tax liability without the child exemption. The Pro Forma Returns were offered as exhibits in hearings before a commissioner and the trial court.
¶3 Based on the Pro Forma Returns, the commissioner determined that the parties’ collective tax liability would be lowered by allowing Widdison to claim the child exemption. Widdison proposed that if Kirkham filed the Pro Forma Returns, he would pay Kirkham the difference in any tax that would be assessed to her as a result. The commissioner, however, certified the issue to the trial court when Kirkham would not agree. The commissioner noted that Kirkham “had no explanation for her position, particularly where it would cost her nothing.”
¶4 The trial court agreed with the commissioner that Widdison would realize a greater tax benefit from the exemption than Kirkham. On October 10, 2012, the trial court entered a written order authorizing Widdison to claim the child exemption for tax years 2009 through 2012. The court also ordered Kirkham to sign and file the Pro Forma Returns as well as IRS Form 8332, which authorized Widdison to claim the child exemption for those years (Amended Returns). Finally, the court ordered Widdison to reimburse Kirkham any difference in taxes owed by Kirkham as a result of filing the Amended Returns. Kirkham timely appealed the trial court’s order.[3]
¶5 While the modification appeal was pending, Kirkham refused to sign and file the Amended Returns.[4] On December 11, 2012, the commissioner held an order to show cause hearing and again ordered Kirkham to sign and file the Amended Returns. Kirkham, again, refused. On January 10, 2013, the commissioner ordered the clerk of the court to sign IRS Form 8332 on behalf of Kirkham[5]—effectively authorizing the Widdisons to file their amended returns with the child exemption.
¶6 On January 18, 2013, Kirkham’s Amended Returns were filed and received by the IRS. Kirkham alleged in her Complaint that the “amended tax returns for the years 2009, 2010 and 2011 in [Kirkham’s] name were filed by [the Widdisons] and HRB.” However, Kirkham conceded two points. First, after HRB argued that it “did not and cannot file amended returns even if they are final” because “[a]mended returns cannot be filed electronically,” Kirkham conceded that “[HRB] didn’t file the amended returns.” Second, when the court later asked Kirkham, “Who filed the returns?” Kirkham replied, “Widdison did.” As discussed below, infra ¶ 13, Kirkham was ultimately unable to produce any evidence that Widdison, or any other defendant, filed the returns.
¶7 In October 2014, this court vacated the modification order and remanded with instructions to make additional findings on whether shifting the child exemption was justified. See Widdison v. Widdison, 2014 UT App 233, ¶ 21, 336 P.3d 1106. But prior to the remand trial, “the parties fully resolved all claims arising from their 2009, 2010 and 2011 tax returns,” and therefore the court did not address that issue. On remand, the trial court reinstated the original modification order and found that the “allocation of tax dependent exemptions [was] consistent with Utah law . . . [and] the ruling was an equitable, fair and reasonable way to distribute the tax benefit in this case.” The trial court found Kirkham in contempt of the 2012 modification order for refusing to sign and file the Amended Returns and for obstructing Widdison’s ability to comply with the order by “frustrating [his] efforts to compensate her.” The court also found that due to Kirkham’s contempt, Widdison “had to file his amended tax returns on his own with an 8332 form in the absence of [Kirkham’s] amended return being filed. This led to [Kirkham’s] tax return for 2012 being seized. . . . [And] this [was] due to [Kirkham’s] own lack of cooperation.” Finally, the court awarded Widdison costs and attorney fees arising from Kirkham’s contempt.[6]
¶8 Kirkham filed this lawsuit against the Widdisons, HRB, and Alpine (collectively, Appellees), alleging that Appellees’ role in preparing the Pro Forma Returns and filing the Amended Returns gave rise to various claims. Specifically, Kirkham raised claims for tortious conversion against all Appellees (Claim 1); civil conspiracy against all Appellees (Claim 2); invasion of privacy against all Appellees (Claim 3); violation of the Utah Consumer Sales Practices Act (UCSPA) against HRB (Claim 4); violations of the UCSPA–Unconscionability against HRB (Claim 5); intentional infliction of emotional distress (IIED) against all Appellees (Claim 6); and breach of fiduciary duty against HRB and Widdison (Claim 7).
¶9 During discovery, HRB moved to have Kirkham’s attorney disqualified.[7] HRB argued that Kirkham’s attorney had obtained employment with HRB without disclosing that he represented Kirkham, who intended to sue HRB. Further, HRB argued that Kirkham’s attorney had taken at least one confidential document from HRB during his employment, which he intended to use in the suit against HRB. The trial court granted HRB’s motion to disqualify, finding that (1) the “likelihood of public suspicion or obloquy outweighs the social interest in allowing [Kirkham’s attorney] to continue to represent [her]”; (2) because Kirkham “has filed this action as a Tier 3 action and seeks extensive punitive damages,” “it is likely that [she] will be able to obtain substitute counsel”; and (3) “the ongoing harm to public confidence and to [HRB] in allowing [Kirkham’s attorney] to continue to represent [Kirkham] outweighs the minimal harm to [her] in having to obtain substitute counsel.”
¶10 HRB also moved the trial court to enter a protective order governing discovery. Kirkham objected, but rather than offering any alternative language to the proposed protective order, she requested that the court not enter the order at all. The trial court rejected Kirkham’s objection, finding that “the order has procedure in it for designating documents as well as objecting to designations” and that “the order as prepared is an ordinary and customary protective order in commercial cases.”
¶11 Next, the Widdisons moved pursuant to rule 12(b)(6) to dismiss Claims 1, 2, 3, 6, and 7—or in other words, Kirkham’s entire Complaint as against them. Simultaneously, HRB moved pursuant to rule 12(b)(6) to dismiss Claims 1, 3, 6, and 7. The trial court granted both motions, excepting Claim 2 against the Widdisons. In a seven page memorandum decision, the trial court made the following conclusions with respect to each dismissed claim:
Claim 1 (Tortious Conversion)—that “intangible property such as knowledge of Kirkham’s tax status is not property that can be converted”—and “[e]ven if such an intangible interest were subject to conversion . . . Kirkham was never deprived of its use.”
Claim 3 (Invasion of Privacy)—that “Kirkham’s counsel made clear that this claim is brought based on misappropriation of name or likeness” and “[s]he alleges no ‘intrinsic value’ of her name” as required by Utah law. And Kirkham’s argument that “every name has intrinsic value . . . is simply legally incorrect.” (Cleaned up.)
Claim 6 (IIED)—that the Widdisons’ conduct and HRB’s conduct, as alleged, does not, as a matter of law, constitute such extreme conduct to state a claim for IIED. Further, Kirkham’s allegations show that she views “the modification proceeding as one long pattern of [IIED]”—and under Utah law, “[a]n allegation of improper filing of a lawsuit or the use of legal process against an individual is not redressable by a cause of action for [IIED].” (Citing Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17.)
Claim 7 (Breach of Fiduciary Duty)—that Widdison “is not a fiduciary for Kirkham . . . by virtue of his status as a law enforcement officer.”[8] And similarly, HRB, “by contracting with [Widdison] and or his attorney, did not become fiduciaries to Kirkham.”
¶12 HRB then moved the trial court, pursuant to rule 12(c), to dismiss Claims 2 (Civil Conspiracy), 4 (Violation of UCSPA), and 5 (Violation of UCSPA–Unconscionability). At the hearing for this motion, HRB argued that it “did not and cannot file amended returns even if they are final,” because “[a]mended returns cannot be filed electronically.” Kirkham then conceded, “[HRB] didn’t file the amended returns.” The court granted the motion, finding that HRB did not violate “26 U.S.C. § 7216 or any other IRS regulation or tax law in preparing the [Pro Forma Returns],” nor did it violate “U.C.A. §§ 76-6-1102 or 76-6-1105 or . . . the [UCSPA].”[9] And thus, “[t]here was not an unlawful overt act committed by [HRB] upon which liability under a civil conspiracy theory could rest, nor has [Kirkham] pleaded any such act.” Further, the court found that Kirkham failed to establish that HRB proximately caused her alleged damages, because she had been ordered to file the Amended Returns in the modification proceeding and refused to do so.
¶13 Finally, Alpine and the Widdisons moved under rule 12(c) to dismiss Kirkham’s remaining claims: Claim 2 (Civil Conspiracy) against the Widdisons and all claims against Alpine.[10] The trial court converted the rule 12(c) motion to one for summary judgment, “giving [Kirkham] the opportunity to support her claims with deposition testimony, affidavits or other evidence.” Ultimately, the trial court granted the motion in favor of the Widdisons, finding (1) “the Declaration of [Kirkham] . . . is merely a restatement of the allegations in the Complaint, and is not supported by personal knowledge on her part”; (2) “there is no evidence that [Alpine or the Widdisons] or any other defendant ever filed a tax return on behalf of [Kirkham] or conspired with others to do so”; and (3) “there is no evidence that a tax return was ever filed on behalf of [Kirkham] by anyone other than [Kirkham].”
¶14 After all Kirkham’s claims were dismissed, HRB moved for attorney fees under Utah Code section 78B-5-825. The court concluded that Kirkham’s claims against HRB lacked merit and were brought in bad faith and therefore, awarded HRB $61,464 in attorney fees.
¶15 Kirkham appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 Kirkham raises six issues on appeal. First, whether the trial court erroneously granted HRB’s and the Widdisons’ rule 12(b)(6) motions to dismiss on Claims 1, 3, 6, and 7. “We review a [trial] court’s decision to grant a rule 12(b)(6) motion to dismiss a complaint for correctness, giving no deference to the [trial] court’s ruling.” Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (cleaned up).
¶17 Second, whether the trial court erroneously granted HRB’s rule 12(c) motion for judgment on the pleadings on Claims 2, 4, and 5. The same standard of review applies for a rule 12(c) motion as for one under rule 12(b)(6), and therefore we review the grant of a motion for judgment on the pleadings for correctness, giving no deference to the trial court’s ruling. Tuttle v. Olds, 2007 UT App 10, ¶ 6, 155 P.3d 893.
¶18 Third, whether the trial court erroneously dismissed Claim 2 against the Widdisons, pursuant to rule 12(c). The record shows, however, that this rule 12(c) motion was converted into a rule 56 motion for summary judgment when matters and evidence outside the pleadings were presented to the trial court. Thus, “we review the [trial] court’s summary judgment ruling for correctness and view all facts and reasonable inferences in favor of the nonmoving party.” USA Power, LLC v. PacifiCorp, 2010 UT 31, ¶ 28, 235 P.3d 749 (cleaned up).
¶19 Fourth, whether the trial court erroneously granted HRB’s motion to disqualify Kirkham’s attorney. “The proper standard of review for decisions relating to disqualification is abuse of discretion.” Snow, Christensen & Martineau v. Lindberg, 2013 UT 15, ¶ 18, 299 P.3d 1058 (cleaned up).
¶20 Fifth, whether the trial court erroneously granted a protective order governing discovery. A trial court’s grant of a protective order is reviewed for an abuse of discretion. Spratley v. State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 8, 78 P.3d 603.
¶21 And sixth, whether the trial court erred by awarding attorney fees and costs pursuant to Utah Code section 78B-5-825. “The Utah Code requires a court to award reasonable attorney fees in a civil action to the prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Bresee v. Barton, 2016 UT App 220, ¶ 15, 387 P.3d 536 (cleaned up). “The without merit determination is a question of law, and therefore we review it for correctness. The bad-faith determination is a question of fact and is therefore reviewed by this court for clear error.” Id. (cleaned up).
ANALYSIS
Motions to Dismiss
¶22 “The purpose of a rule 12(b)(6) motion is to challenge the formal sufficiency of the claim for relief, not to establish the facts or resolve the merits of a case, and accordingly, dismissal is justified only when the allegations of the complaint clearly demonstrate that the plaintiff does not have a claim.” Van Leeuwen v. Bank of Am. NA, 2016 UT App 212, ¶ 6, 387 P.3d 521 (cleaned up). Further, “we accept the factual allegations in the complaint as true” and we make all reasonable inferences in favor of the non-moving party, Oakwood Village LLC v. Albertsons, Inc., 2004 UT 101, ¶ 9, 104 P.3d 1226, but we do not accept a complaint’s legal conclusions as true, Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 26, 21 P.3d 198 (“The sufficiency of . . . pleadings must be determined by the facts pleaded rather than the conclusions stated.” (cleaned up)); see also America West Bank Members, LC v. State, 2014 UT 49, ¶ 7, 342 P.3d 224 (“When reviewing a dismissal under Rule 12(b)(6), . . . we accept the plaintiff’s description of facts alleged in the complaint to be true, but we need not accept extrinsic facts not pleaded nor need we accept legal conclusions in contradiction of the pleaded facts.” (cleaned up)).
¶23 The trial court dismissed Kirkham’s claims, pursuant to rule 12(b)(6), for tortious conversion, invasion of privacy, intentional infliction of emotional distress, and breach of fiduciary duty against HRB and the Widdisons. We examine each claim in turn.
Claim 1—Tortious Conversion
¶24 “A conversion is an act of willful interference with a chattel, done without lawful justification by which the person entitled thereto is deprived of its use and possession.” Bonnie & Hyde, Inc. v. Lynch, 2013 UT App 153, ¶ 30, 305 P.3d 196 (emphasis added) (cleaned up). The trial court concluded that Kirkham’s conversion claim failed because “Kirkham’s tax status is not property that can be converted” and “[e]ven if such an intangible interest were subject to a conversion,”[11] Appellees “plainly had lawful justification to use Kirkham’s tax information . . . and did not deprive her of its use in any event.” The court elaborated, “[t]ax returns and pro forma returns are commonly exchanged and prepared in such actions. The whole point of the modification as it related to the underlying tax exemptions . . . necessarily requires examining at least Kirkham’s tax liabilities, with and without the exemption.” Lastly, the court noted that “Kirkham could have sought protection on the use of such information in the context of discovery in that action, but did not do so.”
¶25 Kirkham acknowledges that “Utah Appellate Courts have not explicitly recognized conversion as involving personal information as a chattel.” Instead, her sole argument on appeal is that the personal information in her tax returns should be considered property subject to conversion. In other words, Kirkham urges us to expand the definition of a chattel to apply to intangible property. We decline to do so. But even if we did, Kirkham has failed to demonstrate that Appellees were not legally justified in using that information or that they deprived her of the use of that information.
¶26 Appellees were legally justified to use Kirkham’s tax information for two reasons. First, Kirkham did not seek any discovery classification or designation—such as “confidential” or “attorney’s eyes only”—which would have limited its use by Appellees. Second, Appellees used Kirkham’s tax information merely to prepare the Pro Forma Returns in order to demonstrate the impact of claiming, or not claiming, the exemption at issue—a practice that is commonplace in this type of litigation.
¶27 Finally, Kirkham has not argued that Appellees deprived her of the use of her personal information. Even if Appellees’ use of Kirkham’s information was improper, she was not precluded from also using that information, and in fact she makes no argument otherwise. We agree with the trial court that “[i]n a sense, Kirkham appears to be arguing that she was entitled to defy the trial court’s order and refuse to file the [A]mended [R]eturns as ordered, and thus is entitled to sue for damages resulting from their filing.” Therefore, we conclude that Kirkham’s claim for tortious conversion was properly dismissed.
Claim 3—Invasion of Privacy
¶28 Kirkham’s invasion of privacy claim is based on misappropriation of her name or likeness.[12] To prevail under this tort theory, a party must show “(1) appropriation, (2) of another’s name or likeness that has some intrinsic value, (3) for the use or benefit of another.” Stien v. Marriott Ownership Resorts, Inc., 944 P.2d 374, 379 (Utah Ct. App. 1997) (cleaned up). The trial court concluded that Kirkham’s allegations were not sufficient to satisfy these elements. The court noted that Kirkham “alleges no intrinsic value of her name” and that her argument “that every name has intrinsic value” is “legally incorrect.” Further, the court concluded that “[a]t the time the returns were allegedly filed, Kirkham had been ordered to file amended returns without claiming that exemption. Thus, there was no intrinsic value in Kirkham’s name that was appropriated by the supposed filing.” We agree.
¶29 On appeal, Kirkham dedicates a single paragraph to support her position that the trial court erred in dismissing this claim. She argues that her tax information is private and confidential under federal law and that therefore Appellees had “absolutely no right to amend those tax returns.” Again, Kirkham’s argument misses the mark. First, Kirkham herself produced the Tax Returns without any designation limiting their use. Second, the Widdisons used the Tax Returns merely to prepare the Pro Forma Returns for the court’s consideration. Third, even if the Widdisons filed the Amended Returns, Kirkham has not demonstrated that doing so was a misappropriation of her name that benefitted the Widdisons.[13] And fourth, Kirkham fails to address the fatal defect in her complaint: that she has not alleged that her name has an intrinsic value. For these reasons, the trial court correctly dismissed Kirkham’s invasion of privacy claim.
Claim 6—Intentional Infliction of Emotional Distress
¶30 To state a claim for IIED, a party must allege that the defendant intentionally engaged in some conduct toward the plaintiff, “(a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the generally accepted standards of decency and morality.” Franco v. Church of Jesus Christ of Latter-day Saints, 2001 UT 25, ¶ 25, 21 P.3d 198 (cleaned up).
¶31 Kirkham’s allegations of IIED show that “she views the modification proceeding as one long pattern of intentional infliction of emotional distress.” That is, she alleges that a host of perceived offenses in the course of the modification proceeding amount to IIED. These perceived offenses included attempts to reduce child support, hold her in contempt, and modify the decree. Other alleged offenses included Appellees’ representations and actions taken in the course of litigation, dragging the case out, rushing to get to hearings when Kirkham’s attorney withdrew, rule violations, and discovery abuses.
¶32 Indeed, on appeal, Kirkham furthers this line of reasoning by arguing that “[s]he has been forced to deal with the IRS and continues in her litigation with her ex-husband relating to those amended tax returns” and “[f]ew if any people and certainly no reasonable person can disagree that one cannot be allowed to take and use another person’s tax returns and personal information.” We deem these arguments unpersuasive for two reasons. First, as we have already noted, Kirkham did not designate her tax returns as confidential under a protective order when she produced them in the modification proceeding. Therefore, use of those returns to prepare the Pro Forma Returns was not extreme and outrageous—especially given that the tax exemption was one of the key issues at play in the modification proceeding.
¶33 Second, Kirkham’s argument on appeal is essentially a recitation of her argument to the trial court below—that “she views the modification proceeding as one long pattern of intentional infliction of emotional distress.” Simply put, “allegation[s] of improper filing of a lawsuit or the use of legal process against an individual is not redressable by a cause of action for [IIED].” Bennett v. Jones, Waldo, Holbrook & McDonough, 2003 UT 9, ¶ 66, 70 P.3d 17. Accordingly, the IIED claim was properly dismissed.
Claim 6—Breach of Fiduciary Duty
¶34 Kirkham contends that HRB owed her a fiduciary duty because “she was set up in HRB’s system as a client.” We reject this argument and affirm the trial court on this point because it is inadequately briefed in two aspects. First, Kirkham does not provide a citation to the record—nor have we been able to find one—in support of her position that she was set up in HRB’s system as a client. See Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 34, 216 P.3d 944 (declining to address a party’s argument on appeal for lack of citations to the record). Second, even if she had cited the record, Kirkham does not provide any legal authority supporting her allegation that HRB became her fiduciary by entering her information into their system. See id. ¶ 35. Nor does she provide any reasoned argument to establish such a precedent under the facts of this case. In other words, we are not persuaded by the argument that HRB owed Kirkham a fiduciary duty when they were retained by the Widdisons to prepare Pro Forma Returns for the purpose of their litigation against Kirkham.
Motion for Judgment on the Pleadings
¶35 Next, Kirkham contends that the trial court erroneously granted HRB’s rule 12(c) motion on Claim 2 for civil conspiracy.[14] A claim for civil conspiracy requires “(1) a combination of two or more persons, (2) an object to be accomplished, (3) a meeting of the minds on the object or course of action, (4) one or more unlawful, overt acts, and (5) damages as a proximate result thereof.” Lawrence v. Intermountain, Inc., 2010 UT App 313, ¶ 12, 243 P.3d 508 (cleaned up).
¶36 The trial court—without deciding on the first three elements—concluded that Kirkham could not meet the final two elements of civil conspiracy. Specifically, the court concluded that HRB did not commit an unlawful or overt act, nor was HRB the proximate cause of damages (if any) that Kirkham sustained. We need not reach the issue of whether HRB committed an overt unlawful act[15] because we agree with the trial court that any alleged wrongdoing on HRB’s behalf was not the proximate cause of the alleged damages suffered by Kirkham, and this determination is fatal to her claim.
¶37 Kirkham articulates an argument that damages arising under this claim include “[h]er 2012 tax refund [being] seized to pay for the tax liability created by the amended tax returns” and her “[spending] a considerable amount of time dealing with the IRS and still litigating with [Widdison].” These damages, however, were proximately caused by Kirkham’s conduct, not HRB’s. To be sure, the trial court, on remand from the modification appeal, found that due to Kirkham’s refusal to sign and file the Amended Returns, Widdison “had to file his amended tax returns on his own . . . in the absence of [Kirkham’s] amended return being filed. This led to [Kirkham’s] tax [refund] for 2012 being seized.” But the court found that “this is due to [Kirkham’s] own lack of cooperation.” If Kirkham would have filed the Amended Returns, notified Widdison of the new amount that she owed, and allowed Widdison to pay that amount to the IRS—as she was ordered to do—her 2012 tax refund would not have been seized. But due to Kirkham’s contemptuous behavior, this did not happen. In other words, Kirkham was not entitled to disregard the modification order or claim damages arising from doing so. Therefore, this claim was properly dismissed.
III. Motion for Summary Judgment
¶38 Next, Kirkham contends that the trial court erred by dismissing Claim 2—for civil conspiracy—against the Widdisons. Although Kirkham argues on appeal that this claim was dismissed pursuant to rule 12(c), we note that the trial court converted the motion to one for summary judgment, “giving [Kirkham] the opportunity to support her claims with deposition testimony, affidavits or other evidence.” Thus, we will “affirm [the trial court’s] grant of summary judgment [if] the record shows that there is no genuine issue as to any material fact and that [the Widdisons are] entitled to a judgment as a matter of law.” See Menzies v. State, 2014 UT 40, ¶ 30, 344 P.3d 581 (cleaned up).
¶39 As an initial matter, Kirkham does not argue on appeal that a genuine issue as to a material fact exists or that she is entitled to judgment as a matter of law—rather, she argues that we must take her allegations as true under rule 12(c). We reject this argument because it ignores the conversion of the rule 12(c) motion to one for summary judgment, where a party cannot merely rest on its pleadings. Orvis v. Johnson, 2008 UT 2, ¶ 18, 177 P.3d 600 (“[O]n summary judgment . . . , the nonmoving party . . . may not rest upon the mere allegations or denials of the pleadings.” (cleaned up)).
¶40 On summary judgment, Kirkham did produce a three-page declaration. However, as the trial court noted, that declaration “is merely a restatement of the allegations in the Complaint, and is not supported by personal knowledge on [Kirkham’s] part”; “there is no evidence that [Alpine or the Widdisons] or any other defendant ever filed a tax return on behalf of [Kirkham] or conspired with others to do so”; and “there is no evidence that a tax return was ever filed on behalf of [Kirkham] by anyone other than [Kirkham].” Accordingly, because no genuine issue of material fact was created below, and because Kirkham has failed to argue that summary judgment was otherwise erroneously granted, we affirm the trial court on this issue.[16]
Motion to Disqualify
¶41 The trial court granted HRB’s motion to disqualify Kirkham’s attorney on the grounds of an appearance of impropriety. In State v. Johnson, 823 P.2d 484 (Utah Ct. App. 1991), this court “articulated a two-pronged test for determining on appeal whether an attorney should have been disqualified from a case because of an appearance of impropriety.” Id. at 490. “First, the court must find that there is at least a reasonable possibility that some specifically identifiable impropriety occurred because of the representation.” Id. (cleaned up). “Second, the court must balance the likelihood of public suspicion or obloquy against the social interest in allowing the defendant to continue being represented by the lawyer of his or her choice.” Id. (cleaned up).
¶42 Kirkham now argues that “[HRB] is not telling the truth.
[And] [a]t the very least [she] should have been afforded an evidentiary hearing before her attorney was disqualified.” As an initial matter, these arguments do not address whether the trial court abused its discretion in its application of the facts of this case to the two-prong test set forth in Johnson. Further, we note that Kirkham has not cited any legal authority—nor do we believe that one exists—that entitles her to an evidentiary hearing before her attorney can be disqualified. Finally, even if we were to reach the conclusion that error was committed, Kirkham has not argued that she suffered any prejudice as a result. See Utah R. Civ. P. 61 (“The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”); Covey v. Covey, 2003 UT App 380, ¶ 21, 80 P.3d 553. In any event, we determine that the record supports the trial court’s conclusion that Kirkham’s attorney was properly disqualified under Johnson.
¶43 The record here demonstrates “a reasonable possibility” that Kirkham’s attorney committed “some specifically identifiable impropriety.” Johnson, 823 P.2d at 490 (cleaned up). Kirkham does not dispute that her attorney gained employment with HRB without disclosing that he simultaneously represented Kirkham, who intended to bring this suit. Nor does Kirkham dispute that her attorney obtained documents during his employment at HRB that he intended to use in the current litigation.[17] This conduct potentially violates at least three rules of professional conduct—all of which could be grounds for disqualification. See Utah R. Prof’l Conduct 4.4(a) (“In representing a client, a lawyer shall not use . . . methods of obtaining evidence that violate the legal rights of [third parties].”); see also id. R. 8.4(c)–(d) (“It is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation [or to] engage in conduct that is prejudicial to the administration of justice.”). Further, in light of the fact that Kirkham does not dispute that this conduct occurred, we are hard-pressed to see how there is not at least a reasonable possibility of impropriety. Thus, we conclude that the trial court did not abuse its discretion in finding that Kirkham’s attorney’s conduct satisfied the first prong of Johnson.
¶44 The record also demonstrates that the trial court properly analyzed the second prong of Johnson—whether “the likelihood of public suspicion or obloquy” outweighed “the social interest in allowing the defendant to continue being represented by the lawyer of his or her choice.” 823 P.2d at 490 (cleaned up). After considering the parties’ submissions, the trial court concluded that the “likelihood of public suspicion or obloquy outweighs the social interest in allowing [Kirkham’s attorney] to continue to represent [her].” And because Kirkham “has filed this action as a Tier 3 action and seeks extensive punitive damages,” “it is likely that [she] will be able to obtain substitute counsel.” Therefore, “the ongoing harm to public confidence and to [HRB] in allowing [Kirkham’s attorney] to continue to represent [Kirkham] outweighs the minimal harm to [Kirkham] in having to obtain substitute counsel.”
¶45 Kirkham makes no attempt to show that these findings are clearly erroneous. Counsel’s obtaining employment at a target defendant’s business would generally be perceived as underhanded by the public. Moreover, Kirkham does not even claim that she unsuccessfully tried to retain alternative counsel. Accordingly, the trial court’s analysis was sound, and it was not an abuse of discretion to disqualify Kirkham’s attorney.
Protective Order
¶46 Kirkham next argues that the trial court erroneously granted a protective order governing discovery. Generally, a “trial court has numerous tools it must employ to prevent unwarranted disclosure of the confidential information, including the use of sealing and protective orders.” Spratley v. State Farm Mutual Auto. Ins. Co., 2003 UT 39, ¶ 22, 78 P.3d 603 (cleaned up). “The liberal use of these tools, and others inherent in a trial court’s authority to govern the conduct of proceedings, is a prudent and sufficient safeguard against overbroad disclosure.” Id.
¶47 Here, HRB moved the trial court to enter a protective order governing discovery. Kirkham objected, but rather than offering any alternative language to the proposed protective order, she requested that the court not enter the order at all. The trial court rejected Kirkham’s objection, finding that “the order has procedure in it for designating documents as well as objecting to designations.” The court confirmed the existence of these provisions on the record by asking HRB whether the “order [had a] procedure in it for designating documents as well as objecting to designations.” HRB replied, “Yes.”
¶48 Kirkham now contends that the trial court erred because the protective order precluded her from obtaining discovery. She fails, however, to provide a single citation to the record that would support her argument. Indeed, her arguments on appeal show only that HRB objected to some of Kirkham’s requests for production on the grounds of relevance and privilege. For example, she argues that “requests [that] HRB produce from its records the tax returns and amended tax returns of [the Widdisons]” was objected to on the grounds of relevancy and privilege. Whether this objection was well-taken has nothing to do with whether a protective order should have been entered. Kirkham does not explain how the protective order impeded her ability to conduct discovery. Nor has Kirkham provided any meaningful argument that the trial court abused its discretion by entering what we view as a standard, garden-variety protective order. We conclude that the trial court acted well within its discretion. Moreover, Kirkham does not identify any prejudice associated with the entry of the protective order. Accordingly, Kirkham has provided no basis for reversal.
Attorney Fees
¶49 Finally, Kirkham contends that the trial court erred in granting HRB’s motion for attorney fees under Utah’s bad faith attorney fees statute, which provides that “[i]n civil actions, the court shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Utah Code Ann. § 78B-5-825 (LexisNexis 2018).[18] “To award fees pursuant to this section, a trial court must determine both that the losing party’s action or defense was without merit and that it was brought or asserted in bad faith.” Fadel v. Deseret First Credit Union, 2017 UT App 165, ¶ 30, 405 P.3d 807 (cleaned up).
Without Merit
¶50 Kirkham argues that the trial court erred in concluding that her claims against HRB were without merit. “To determine whether a claim is without merit, we look to whether it was frivolous or of little weight or importance having no basis in law or fact.” Id. ¶ 32 (cleaned up). In other words, “the bare existence of a basis in law for a potential claim is not sufficient to make a claim meritorious. Rather, there must also be a factual basis for a party’s claims apart from a . . . theoretical basis in law.” Id. (cleaned up).
¶51 Kirkham has not shown that the trial court erred in concluding that her claims were without merit. Kirkham’s only meaningful allegation against HRB was that “[t]he amended tax returns for the years 2009, 2010 and 2011 in [Kirkham’s] name were filed by . . . HRB.” This allegation, if true, certainly could have given rise to a meritorious claim. Kirkham, however, conceded that “[HRB] didn’t file the amended returns,” and she instead argued that “Widdison did.” This concession is telling. If Kirkham knew that HRB had not filed her Amended Returns, we are left with only the allegation that HRB prepared Pro Forma Returns to assist in the underlying modification proceeding—an act that does not rise to the level of tortious or criminal conduct. Further, even after Kirkham conceded this point, she refused to drop her remaining claims against HRB. Thus, we conclude that there was no factual basis for Kirkham’s claims against HRB and therefore, those claims were frivolous as a matter of law.
Bad Faith
¶52 Kirkham contends that the trial court erred in finding that she did not bring her claims in good faith. She argues that “there was no evidentiary hearing and indeed no discovery” and “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [Kirkham’s] access to the courts.” This assertion does not address the findings that were the legal basis of the trial court’s ruling.
¶53 To satisfy the bad faith element under the statute, a court “must find that the plaintiff (1) lacked an honest belief in the propriety of the activities in question; (2) intended to take unconscionable advantage of others; or (3) had intent to, or knowledge of the fact that the activities in question will hinder, delay or defraud others.” Fadel, 2017 UT App 165, ¶ 35 (cleaned up). “On appeal, a trial court’s finding of bad faith may be upheld despite a party’s claim that he or she held a subjectively reasonable or honest belief in the propriety of the claims . . . raised during the course of a case.” Id. (cleaned up). Thus, we will affirm a finding of bad faith “when there is sufficient evidence in the record to support a finding that at least one of the three factors applies.” Id. (cleaned up).
¶54 Here, we conclude that the trial court’s bad faith finding was not clearly erroneous for three reasons. First, as discussed above, Kirkham conceded that HRB did not file the Amended Returns. When Kirkham alleged that HRB did file the Amended returns, she clearly “lacked an honest belief in the propriety of the activities in question.” See id. (cleaned up). Second, Kirkham’s general allegation that she suffered damages as a result of the Amended Returns being filed is in direct contradiction to the ruling made in the modification proceeding ordering Kirkham to sign and file the Amended Returns. See Warner v. Warner, 2014 UT App 16, ¶¶ 35–37, 319 P.3d 711 (affirming a finding of bad faith when a party prepared an order that was “180 degrees different than what the court ruled” (cleaned up)). Third, Kirkham, on appeal, has declined to provide a single meaningful citation to the record[19] or otherwise provide analysis or legal authority in support of her position. Instead, Kirkham provides the conclusory statement that “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [her] access to the courts.” Again, this assertion does not directly confront the basis of the trial court’s ruling and fee award. Further, HRB supported their motion below with assertions of bad faith actions that Kirkham does not mention, let alone rebut. In failing to directly address the basis of the trial court’s ruling and additionally failing to confront the record evidence of bad faith, we conclude that Kirkham has not established a basis for overcoming the trial court’s bad faith finding—and therefore, she has failed to meet her burden of persuasion on appeal. See State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645.
¶55 Next, we reject Kirkham’s argument that “[t]he amounts of fees and costs awarded clearly indicate the court has not proceeded judiciously and has sought to limit [Kirkham’s] access to the courts.” As we have discussed above, supra ¶¶ 50–54, the trial court’s award was justified under the bad faith attorney fee statute. Furthermore, this conclusory statement does not provide a basis for us to reverse by showing that the “amounts of fees and costs awarded” were unreasonable or excessive. TurtleMgmt., Inc. v. Haggis Mgmt., Inc., 645 P.2d 667, 671 (Utah 1982) (“The amount to be awarded as attorney[] fees is generally within the sound discretion of the trial court” and will be “upheld . . . where the amount does not appear to be unreasonable.” (cleaned up)). Therefore, besides affirming the award in general, we decline to disturb the trial court’s finding of the amount of fees awarded below.
¶56 Finally, HRB seeks an award of attorney fees incurred on appeal. “Generally, when a party who received attorney fees below prevails on appeal, the party is also entitled to fees reasonably incurred on appeal.” Fadel, 2017 UT App 165, ¶ 38 (cleaned up). “This rule applies when the basis for attorney fees in the trial court is the bad faith statute.” Id. (cleaned up). HRB has successfully defended the trial court’s dismissal of Kirkham’s claims, and the trial court awarded attorney fees pursuant to Utah Code section 78B-5-825. Therefore, we grant HRB’s request for an award of attorney fees on appeal.
CONCLUSION
¶57 We conclude that all of Kirkham’s claims were properly dismissed, the trial court did not erroneously disqualify Kirkham’s attorney, the trial court properly entered a protective order, and HRB was properly awarded attorney fees. We further award HRB’s costs and attorney fees on appeal. We remand to the trial court only to determine HRB’s fees on appeal.
Utah Family Law, LC | divorceutah.com | 801-466-9277
[1]See generally Widdison v. Kirkham, 2018 UT App 205, 437 P.3d 555 (appealing the remand trial regarding the 2012 modification order); Kirkham v. McConkie, 2018 UT App 100, 427 P.3d 444 (appealing the dismissal of her legal malpractice claim); Widdison v. Widdison, 2014 UT App 233, 336 P.3d 1106 (appealing the trial court’s 2012 modification order).
[2] Pro forma is defined as “made or carried out in a perfunctory manner or as a formality” or “based on financial assumptions or projections: such as . . . reflecting a transaction (such as a merger) or other development as if it had been or will be in effect for a past or future period.” Pro forma, Merriam-Webster.com, https://www.merriam-webster.com/dictionary/pro%20forma [htt ps://perma.cc/68K9-FQ3U].
[3] Kirkham also brought numerous claims against the attorney who represented her from 2007 to 2012 for conduct related to the modification proceeding. See McConkie, 2018 UT App 100, ¶ 2. Kirkham’s claims were dismissed on summary judgment, and this court affirmed. Id. ¶ 1.
[4] The record does not indicate that Kirkham moved to stay the modification while the appeal was pending.
[5] The court clerk was authorized to sign IRS Form 8332 on behalf of Kirkham under rule 70 of the Utah Rules of Civil Procedure.
[6] Kirkham again appealed, and this court affirmed. See Widdison, 2018 UT App 205, ¶ 18 (affirming the trial court, but remanding to recalculate attorney fees owed by Kirkham for the prior appeal and remand trial proceedings).
[7] Kirkham’s attorney was her father, Larry A. Kirkham.
[8] Kirkham makes no mention of the trial court’s treatment of Claim 7—as against Widdison—in her opening brief, and therefore we decline to address whether it was properly dismissed. See Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (“Issues . . . that were not presented in the opening brief are considered waived and will not be considered by the appellate court.” (cleaned up)).
[9] Kirkham makes no mention of the trial court’s treatment of Claims 4 and 5 in her opening brief, and therefore we decline to address whether they were properly dismissed. See id.
[10] 10. Because of Alpine’s insignificant role in this case—the Widdisons used Alpine’s fax machine to send copies of the Tax Returns to HRB—the trial court disposed of all claims against it pursuant to this rule 12(c) motion by simply stating that “all Causes of Action against the Defendant Alpine Gardens, Inc., are hereby dismissed with prejudice.” And while the trial court dedicated no analysis to the disposal of claims against Alpine, Kirkham has dedicated an equal paucity of analysis in her opening brief. Therefore, we limit our review to claims against HRB and the Widdisons as the appeal of the dismissal of claims against Alpine are inadequately briefed. See Angel Inv’rs, LLC v. Garrity, 2009 UT 40, ¶ 35, 216 P.3d 944 (“We have long held that we have discretion to not address an inadequately briefed argument.”).
[11] The court also noted, and we agree, that the precise issue is not whether the Pro Forma Returns were subject to conversion but whether the underlying information used in the returns was.
[12] Kirkham conceded below that this claim was rooted in misappropriation of name or likeness.
[13] The Widdisons’ only practical benefit arose from the signing and filing of IRS Form 8332, which transferred the child exemption to them from Kirkham. IRS Form 8332, however, was properly signed by the court clerk under rule 70 of the Utah Rules of Civil Procedure. Thus, Kirkham cannot—nor has she attempted to—demonstrate that filing the Amended Returns benefitted HRB or the Widdisons.
[14] As noted, Claims 4 and 5 were also dismissed on this motion, but Kirkham has failed to brief those claims, instead focusing only on Claim 2. See supra ¶ 12 n.9.
[15] We note, however, that in light of Kirkham’s concession that HRB did not actually file her Amended Returns, we agree with the trial court that no unlawful act was committed by HRB.
[16] Even if we were inclined to take Kirkham’s argument at face value—that we must take her allegations as true—this claim still fails for the reasons we articulate in section II.
[17] Kirkham instead argues that obtaining HRB’s internal documents was not prejudicial to HRB because that information was discoverable.
[18] Because the statutory provision in effect at the relevant time does not differ in any material way from the provision now in effect, we cite the current version of the Utah Code.
[19] Kirkham cites the record only to indicate that a full motion cycle and ruling on attorney fees was made below.